IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020343


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

2.  The applicant states he went absent without leave (AWOL) to protect himself from deploying overseas to Vietnam because he had a severe hearing loss and could not follow marching or field orders.  He has applied for Veteran's benefits with the Department of Veterans Affairs (VA) and his application was denied due to his type of discharge.  He states it should be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 October 1970 and a letter from a North Carolina VA office, dated 20 July 2010.

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 was inducted into the Army of the United States on 11 March 1968 and he completed basic training at Fort Bragg, NC.  His personnel service record shows he received excellent conduct and efficiency ratings during his initial entry training.  

3.  On 27 March 1968, the applicant was assigned to Company F, 3rd Battalion, Student Brigade at Fort Gordon, GA for the purpose of attending his advanced individual training in military occupational specialty 31M (Radio Relay and Carrier Operator).

4.  The applicant's disciplinary records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate dates for being AWOL during the periods 2 July to 11 July 1968, from 23 July to 29 July 1968, and from 20 August to 25 August 1968.  

5.  On 5 October 1968, while in a trainee status his unit reported him AWOL.

6.  On 21 August 1970, court-martial charges were preferred against the applicant for being AWOL from his unit from 5 October 1968 through 11 August 1970.

7.  On 2 September 1970, the applicant consulted with legal counsel and he 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 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial

8.  In his request for discharge, the applicant indicated that he understood that if his discharge request were approved 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, and that he may be deprived of his rights and benefits as a Veteran under both Federal and state laws.

9.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended issuance of an Undesirable Discharge.  The immediate commander stated that based on the applicant's AWOL offense of 677 days, his negative attitude and previous NPJ history, it would be in the best interest of the Government to accept his request for discharge for the good of the service in lieu of trial by court-martial.

10.  The applicant's military medical records are not available for the Board's review. 

11.  On 18 September 1970, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be given an undesirable discharge.

12.  On 2 October 1970, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with an undesirable discharge.  This form further confirms that he completed 7 months and 21 days of net active service with time lost from 2 July to 10 July 1968, from 23 July to 28 July 1968, from 20 August to 25 August 1968 and from 5 October 1968 to 10 August 1970.  Additionally, he had 17 days of excess leave from 14 August to 19 August 1970 and from 22 September to 1 October 1970.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offense chargeable under the UCMJ.  A punitive discharge is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months 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 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 would normally be furnished an individual who was discharged for the good of the Service.  

	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.  While his medical records were not available for review, the applicant did not provide any documentary evidence to show he had a hearing impairment in 1968 that prevented him from following military orders as he purports in his statement.

2.  Based on the evidence of record, the applicant had a history of AWOL prior to his extended AWOL period of 677 days.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the 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.

4.  The ABCMR does not grant requests for 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 discharge.  Additionally, the granting of Veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for benefits should be addressed to the VA.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement; therefore, there is an insufficient basis to upgrade his discharge to either 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)                                         AR20090021250



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ABCMR Record of Proceedings (cont)                                         AR20100020343



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