IN THE CASE OF:	  

		BOARD DATE:	    29 July 2010

		DOCKET NUMBER:  AR20100001251 


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 requests his undesirable discharge (UD) be upgraded to a general discharge (GD), under honorable conditions.  

2.  The applicant states he is requesting that his discharge be upgraded in order to receive assistance from the Department of Veterans Affairs (VA).  He claims he had some problems that caused him to return to Fort Knox, Kentucky late; however, two Soldiers in the office understood the situation and charged the days to show he was on leave.  The top sergeant discovered this and wanted to charge him with desertion and when he was told he could not, he decided to give him a hard time.  The applicant states some examples that led him to this conclusion to include an incident that led to him receiving nonjudicial punishment (NJP) and some other incidents that occurred in the unit.  

3.  The applicant further states he was getting depressed and he could not take anymore.  After being refused a transfer, he sought the advice of the two Soldiers who assisted him when he first arrived at the unit late.  These Soldiers advised him that he could be discharged if he went absent without leave (AWOL) and faced court-martial charges.  He ultimately did this and he was discharged as a result.  





4.  The applicant provides a self-authored statement and five third-party statements in support of his application. 

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 22 February 1974.  He was trained in and awarded military occupational specialty (MOS) 13B (Field Artillery) and private/E-2 is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

3.  The applicant’s disciplinary history includes his acceptance of NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

   a.  13 March 1974, for failing to go to his appointed place of duty at the time prescribed; and 

   b. 21 October 1974, for failing to go to his appointed place of duty at the time prescribed.  

4.  The record further shows the applicant departed AWOL from his unit at Fort Knox on 1 November 1974.  He was dropped from the rolls of the organization on 29 November 1974, and he returned to military control on 17 December 1974.

5.  A complete separation packet containing all the facts and circumstances surrounding the applicant’s separation processing are not on file in his record.  


6.  The record also contains various documents showing the applicant was apprehended and returned to military control at Fort Knox and was processed for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  It also contains a records request showing the applicant's discharge packet was sent to the VA Regional Office, Chicago, Illinois, on 29 April 1975.  

7.  The record also contains a properly-constituted DD Form 214 (Report of Separation from Active Duty) that identifies the authority and reason for his discharge.  It confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu to trial by 
court-martial.  It further shows at the time of his discharge on 10 March 1975, he held the rank of private/E-1 and had completed 11 months and 2 days of creditable active military service and accrued 47 days of time lost due to AWOL.   

8.  The applicant provides five third-party statements from friends and relatives that attest to his good post service conduct and character.  

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. An under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial under the provisions of chapter 10; however, the separation authority may direct that a GD if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant’s discharge the issuance of a UD was authorized for members separated under these provisions.  

10.  The above regulation also provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.  It also provides that a GD 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 HD.  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 discharge should be upgraded so he may be eligible to obtain VA assistance, and due to the unfair treatment he received as a result of a sergeant, has been carefully considered.  However, discharges are not upgraded solely for the purpose of obtaining VA benefits and there is insufficient evidence to support his claim that his discharge was unjust.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include various documents and a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The documents in the record and the applicant’s DD Form 214 confirm he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by 
court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

4.  The applicant’s record documents no acts of valor or significant achievement; however, it does reveals a disciplinary history that includes his acceptance of NJP on two separate occasions and accrual of 47 days of time lost due to being AWOL.  It further shows he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  

5.  The UD that the applicant received was normal and appropriate under the regulatory guidance in effect at the time and his overall record of short and undistinguished service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it support an upgrade now.  



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)                                         AR20100001251



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)