IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100012874 


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 be upgraded. 

2.  The applicant states, in effect, that he was denied benefits by the Social Security Administration.  He states he is in a nursing home due to a stroke, has no one to take care of him, and has no way to pay his medical bills.

3.  The applicant provides copies of his medical bills.

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 Regular Army on 30 October 1974 for a 3-year period of service.  He completed his initial entry training and he was awarded military occupational specialty 16P (Chaparral Crewman). 
3.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 1 October 1975 to 5 October 1975.  There are no records of conviction by court-martial.

4.  The applicant was mentally evaluated on 24 March 1977.  He was found medically qualified for separation consideration under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  During a mental status evaluation, he was found to be mentally responsible; able to distinguish right from wrong with the ability to adhere to the right; and to have met the retention standards as prescribed in Army Regulation 40-501 (Standards of Medical Fitness).

5.  On 25 March 1977, court-martial charges were preferred against the applicant for being AWOL from 20 October 1976 to 23 March 1977.

6.  On 25 March 1977, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

7.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial on 6 April 1977 and directed issuance of an under other than honorable conditions discharge.

8.  The applicant was discharged accordingly on 13 April 1977.  The DD Form 214 issued at the time confirms he completed 2 years and 8 days of net active service with his service characterized as under other than honorable conditions.  Item 21 (Time Lost Preceding 2 Years) of his DD Form 214 shows the entry "178 days."  Item 27 (Remarks) shows he had a total of 158 days lost time under the provisions of Title 10, U.S. Code, section 972.

9.  There is no documentary evidence to show the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for a discharge upgrade.
10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL of 30 or more days is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to the lowest enlisted grade and a forfeiture of all pay and allowances.

	b.  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.

	c.  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.

	d.  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 contends his discharge should be upgraded because he, in effect, needs assistance with his medical bills. 

2.  While a Soldier, the applicant was charged under the UCMJ for being AWOL in excess of 30 days.  This act is a violation of the UCMJ with a maximum punishment of confinement for 12 to 18 months, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and a dishonorable or bad conduct discharge. 

3.  Upon returning to military control and after meeting with counsel who informed him he could lose all Veterans benefits offered by the local, state or Federal government, the applicant voluntarily elected a discharge under the provisions of Army Regulation 635-200, chapter 10.  This type discharge is a voluntary request for discharge in lieu of trial by court-martial.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, there is no basis for warranting an upgrade of his under other than honorable conditions discharge.

5.  The Army Board for Correction of Military Records does not upgrade an individual's discharge characterization for the purpose of entitlement to Veterans benefits by other government agencies. 

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)                                         AR20100012874



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012874



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1