BOARD DATE: 26 October 2010
DOCKET NUMBER: AR20100011612
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 discharge characterized as under conditions other than honorable be upgraded to honorable.
2. The applicant states that all the facts and circumstances surrounding the event resulting in his discharge under other than honorable conditions were never presented. He states he is a homeless veteran with minimal income and the upgrade of his discharge is necessary to receive Department of Veterans Affairs (VA) benefits.
3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 7 November 1969.
3. On 7 May 1970, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 4 May 1970 to 6 May 1970. His punishment consisted of a forfeiture of $29.00 pay for 1 month, 14 days of restriction, and 14 days of extra duty.
4. On 23 July 1970, NJP was imposed against the applicant for failure to repair at his appointed place of duty and failure to obey a lawful order issued from a senior noncommissioned officer. His punishment consisted of a forfeiture of 7 days' pay for 1 month, 14 days of restriction, and 14 days of extra duty.
5. On 13 August 1970, NJP was imposed against the applicant for failure to repair at his appointed place of duty. His punishment consisted of a forfeiture of 7 days' pay for 1 month.
6. On 23 September 1970, NJP was imposed against the applicant for failure to obey an order. His punishment consisted of a forfeiture of 7 days' pay for 1 month, 14 days of restriction, and 14 days of extra duty.
7. On 26 October 1970, NJP was imposed against the applicant for failure to repair at his appointed place of duty. His punishment consisted of a forfeiture of 7 days' pay for 1 month, 14 days of restriction, and 14 days of extra duty.
8. Headquarters, 2d Basic Combat Training Brigade, Summary Court-Martial Order Number 1, dated 6 January 1971, shows the applicant was convicted by a summary court-martial and found guilty of two violations of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 9 November 1970 to 27 November 1970 and from 3 December 1970 to 25 December 1970. His sentence consisted of confinement at hard labor for 21 days and a forfeiture of $88.00 pay for 1 month. The sentence was adjudged on 5 January 1971.
9. On 2 January 1973, charges were preferred against the applicant for being AWOL from 24 January 1971 to 21 December 1972.
10. On 11 January 1973, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).
11. His request for discharge indicated he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he might be furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all VA benefits, and that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.
12. A copy of the memorandum approving the applicant's request for discharge for the good of the service in lieu of trial by court-martial was not contained in his available military records. However, the applicant's records contain a duly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, on 28 March 1973. It shows his discharge was characterized as under other than honorable conditions. It further shows he completed 1 year, 3 months, and 17 days of total active service with 765 days lost under Title 10, U.S. Code, section 972.
13. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
14. 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 submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
15. Army Regulation 635-200, 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.
16. 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. It is unfortunate that the applicant is homeless and is in need of VA benefits. However, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans' benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.
2. The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process. The record further shows the applicant voluntarily requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial.
3. The applicant's record of service included five NJP's, a conviction by a summary court-martial, and 765 days of lost time. Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service as unsatisfactory. Therefore, he is not entitled to an honorable or a general discharge.
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) AR20100011612
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ABCMR Record of Proceedings (cont) AR20100011612
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