IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100013157


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 that his under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he was told if he resigned, he would be issued a general discharge under honorable conditions.  The applicant states he would like his discharge upgraded so that he will be eligible for medical benefits from the Department of Veterans Affairs (VA).  He further states that he was not paid for his service after December "1968," and he went absent without leave (AWOL) to take a job with pay.  

3.  The applicant provided no additional documentary evidence.

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 8 October 1969 at the age of 19.  Records show he completed basic combat training and advanced individual training and was awarded military occupational specialty  62F (Crane Shovel Operator).  The highest rank/grade he attained while serving on active duty was private (PV2)/E2.

3.  On 17 March 1970, the applicant was reported AWOL from the United States Army Overseas Replacement Station, Oakland, CA and he remained AWOL until 17 April 1970.  The applicant escaped from military custody at Fort Jackson, SC on 17 April 1970.  The duration of his escape is unknown.

4.  On 18 May 1970, the applicant was reported AWOL from the Special Processing Detachment, Fort Jackson, SC, and he remained AWOL until 
10 June 1970.  

5.  On 16 July 1970, the applicant was arraigned and tried before a Special Court-Martial at Fort Jackson, SC, on two charges of AWOL.  The applicant was sentenced to 5 months in confinement with hard labor and to forfeit $20.00 pay for 5 months.  On 4 August 1970, the applicant was transferred to the Correctional Training Facility at Fort Riley, KS to serve the remainder of his sentence.  The applicant's sentence was suspended and remitted on 18 August 1970 and 30 September 1970, respectively.

6.  On 12 October 1970, the applicant was reported AWOL from the U.S. Army Engineer School, Fort Belvoir, VA.  The applicant surrendered to military authorities at Fort Jackson, SC on 20 April 1971.  

7.  On 20 April 1971, charges were preferred against the applicant for being AWOL from 12 October 1970 to 20 April 1971.

8.  On 20 April 1971, 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, he 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 bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was 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. 

10.  In the applicant's personal statement that was submitted with his request for discharge, the applicant stated that his medical condition (phlebitis) was worse due to his military service.  He indicated that he unsuccessfully attempted to be medically discharged prior to going AWOL and that he was a good Soldier who gave 110 percent when he was not AWOL. 

11.  On 3 May 1971, the separation authority approved the applicant's request for discharge and directed that he be issued an under other than honorable conditions discharge.  On 11 May 1971, the applicant was discharged accordingly.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) confirmed he completed 7 months and 7 days of total active service with 11 months and 22 days of time lost due to being AWOL and in confinement.

12.  On 17 November 1981, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

14.  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.

15.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered; however, there is insufficient evidence to support this claim.

2.  The applicant's records reflect that he enlisted on 8 October 1969.  The applicant's contention that he was not paid for an unspecified number of months after December, 1968 has been noted.  The applicant had no military status during the period he contends he was not paid.  There is no information available in the applicant's record to verify that he was not properly paid during his military service, either at the appropriate time or prior to his discharge.  

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  

4.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication 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.  The applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, including 11 months and 22 days of time lost due to being AWOL and in confinement, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or honorable discharge.

6.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans' or medical benefits.

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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20100013157



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