IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100007946 


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 an upgrade of his discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he injured his left knee during his second week of basic training.  At the time, he was offered an immediate medical discharge with a disability pension, but he refused the offer because he felt he needed to fulfill his obligations.  However, he accepted a reduction in his enlistment term from 3 years to 2 years.  He states he is submitting this request to receive any veterans' benefits to which he is entitled.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a DA Form 3349 (Medical Condition - Physical Profile Record), dated 10 June 1971; two Standard Forms 88 (Report of Medical Examination), dated 25 March 1971 and 5 October 1972; a DA Form 3322-R (Report of Mental Status Evaluation), dated 23 February 1972; and a Standard Form 600 (Chronological Record of Medical Care), dated 26 October 1972 to 10 November 1972.

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 enlisted in the Regular Army for a period of 3 years on 25 March 1971.  Records show the applicant was 18 years of age at the time of his enlistment.  The applicant completed basic combat training, but he did not complete advanced individual training due to a permanent physical profile which prohibited him from training.  The highest grade the applicant attained was private/pay grade E-2.

3.  On 28 April 1971, the applicant received nonjudical punishment under Article 15, Uniform Code of Military Justice, for failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a forfeiture of $31.00 pay, restriction for 14 days, and extra duty for 14 days.

4.  On 4 November 1971, the applicant was convicted by a special court-martial for three specifications of absence without leave (AWOL) from 4 July 1971 to 18 August 1971, 24 August 1971 to 7 September 1971, and 13 September 1971 to 13 October 1971.  His sentence consisted of confinement at hard labor for 4 months.

5.  On 5 April 1972, the applicant was advised by his unit commander that he was being recommended for discharge under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) by reason of unfitness.  The stated reason for the recommendation was the applicant's frequent acts of a discreditable nature.

6.  On the same day, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation action, its effects, and the rights available to him, he requested that his case be considered by a board of officers.  The applicant did not submit a statement in his behalf.  Apparently this action was not completed.

7.  On 11 April 1972, the applicant was again convicted by a special court-martial for one specification of AWOL from 31 January 1972 to 15 February 1972.  The sentence consisted of a reduction to private/pay grade E-1, forfeiture of $120.00 pay for 3 months, and confinement at hard labor for 31 days.

8.  On 2 October 1972, charges were preferred against the applicant for being AWOL from 5 May 1972 to 30 September 1972.

9.  On 6 October 1972, the applicant consulted with counsel and voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  The applicant's request for discharge states that he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under the other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant submitted a statement in his own behalf.  It shows the applicant had no desire of fulfilling his military obligations and he requested that he be discharged in order to be returned to his family.

10.  On 20 December 1972, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be furnished a discharge under other than honorable conditions.

11.  On 17 January 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a character of service as under other than honorable conditions.  He completed 8 months and 15 days of net active service this period.  The DD Form 214 also shows the applicant had 405 days of lost time due to AWOL.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	b.  Army Regulation 625-200, paragraph 3-7a, provides that an honorable discharge 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.

	c.  Army Regulation 625-200, 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.

13.  On 9 October 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The evidence of record shows the applicant had an extensive disciplinary history that included two separate special court-martial convictions.  His discharge processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant service warranting special recognition and as a result, his discharge accurately reflects his overall record of undistinguished service.  His overall record of service and extensive disciplinary history did not support the issuance of a general or honorable discharge at the time of his discharge and does not support an upgrade at this time.

4.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  In view of the forgoing, the applicant's request should be denied.

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)                                         AR20100007946



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ABCMR Record of Proceedings (cont)                                         AR20100007946



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