BOARD DATE:	 15 July 2010 

		DOCKET NUMBER:  AR20100000013 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant, in effect, requests that his undesirable discharge be upgraded.

2.  The applicant states he had a history of migraine headaches as the result of an auto accident when he was 12 years old.  The headaches returned while he was attending basic combat training.  While home on leave his headaches got worse and he sought treatment at a Veterans Administration (VA) hospital, which resulted in him being placed in an absent without leave (AWOL) status.

3.  The applicant also states that when he returned to his unit he was placed in the stockade and his medical records were seized.  He says he was given a shot and when he awoke he was given discharge papers to sign.  He contends he was told that when a VA doctor provided verification of the treatment he received while home on leave, his discharge would be upgraded.  He concludes that he desires to have his discharge upgraded so he will be eligible to receive education and home loan benefits.

4.  The applicant provides no documentary evidence in support of his request.  However, he states that all documents pertaining to this matter were taken from him in 1972.  He also states copies that the doctor had have allegedly been misplaced and he has since died.  He concludes that he has been unable to locate the copies of the documentation that were in the possession of his late mother.



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular Army on 26 June 1970.  He did not complete initial entry training and was not awarded a military occupational specialty.  The highest rank/pay grade he attained while serving on active duty was private/E-2.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit without authority from 19 October 1970 until 9 November 1970, a total of 21 days.

4.  A DD Form 458 (Charge Sheet), dated 29 December 1971, shows the applicant was charged with two specifications of violation of Article 86 of the UCMJ and his chain of command recommended he be tried by a special court-martial empowered to adjudge a bad conduct discharge.  The specifications were for being AWOL from his unit during the following periods

* 30 November 1970 to 5 February 1971, a total of 67 days
* 5 March 1971 to 18 December 1971, a total of 288 days

5.  On 11 January 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  The applicant's company, battalion, and brigade-level commanders all recommended approval of his request and the issuance of an Undesirable Discharge Certificate.

7.  On 27 January 1972, the separation authority approved the applicant's request and directed that he be reduced to the lowest grade and issued a DD Form 258A (Undesirable Discharge Certificate).

8.  On 7 February 1972, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued an Undesirable Discharge Certificate.  He had completed 6 months and 12 days of creditable active military service.  He also was credited with 398 days of lost time.

9.  On 23 September 1977, the Adjutant General informed the applicant that after careful consideration of his military records and all other available evidence, the Army Discharge Review Board had determined that he was properly and equitably discharged.  Accordingly, his request for a change in the type and nature of his discharge was denied.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's allegation that his discharge would be upgraded upon receipt of verification of the medical treatment he received while home on leave is unsubstantiated.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told his undesirable discharge would be upgraded.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

3.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  Based on his record of indiscipline, the applicant's service prior to the offense is not sufficient to mitigate the misconduct that led to his final discharge.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or a general characterization of service.

7.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment or employment benefits.
Additionally, in order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x____  ___x____  ___x___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _  x _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.



ABCMR Record of Proceedings (cont)                                         AR20100000013





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000013



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1