IN THE CASE OF:	  

		BOARD DATE:	  10 May 2011

		DOCKET NUMBER:  AR20100027330 


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 undesirable discharge (UD).  

2.  The applicant states the Board should consider upgrading his discharge so he can obtain badly needed medical benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides no documentary evidence in support of his application.  

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 20 August 1970.  He was trained in and awarded military occupational specialty (MOS) 05B (Radio Operator).  The record shows he was advanced to specialist four (SP4)/
E-4 on 13 May 1970 and this is the highest rank/grade he attained while serving on active duty.

3.  The applicant’s record shows he earned the National Defense Service Medal during his active duty tenure.  His record documents no acts of valor or significant achievement.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

* 21 October 1970, for failing to report to his proper place of duty on
20 October 1970
* 30 November 1970, for being absent without leave (AWOL) from
26 November 1970 to 30 November 1970
* 15 January 1971, for being AWOL from 11 January 1971 to 14 January 1971

4.  On 6 December 1971, the applicant departed AWOL from his unit in Germany.  He was dropped from the rolls (DFR) of his organization on 4 January 1972.  He was apprehended and returned to military control at Fort Dix, NJ on
9 February 1972.  He departed AWOL from Fort Dix on 24 February 1972 and he was immediately placed in a DFR status.  He remained absent until he was again apprehended and returned to military control at Fort Dix on 12 May 1972.

5.  On 23 May 1972, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant based on violation of Article 86 of the UCMJ.  He was charged with being AWOL from 6 December 1971 to 9 February 1972 and from 24 February 1972 to 12 May 1972.

6.  On 26 May 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ; of the possible effects of an undesirable or general discharge; and of the rights 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-marital   In his request for discharge, the applicant acknowledged that as a result of his request, he could receive an Undesirable Discharge Certificate; that 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.  

7.  On 15 June 1972, the separation authority approved the applicant’s request and directed the issuance of a UD.  On 26 June 1972, he was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he completed 1 year, 4 months, and 27 days of total active service with 163 days of time lost due to being AWOL and in confinement.

8.  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.  

9.  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 VA 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.  

10.  Army Regulation 635-200, paragraph 3-7b, states 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 in order to allow him to receive VA medical benefits has been carefully considered.  However, while his current medical condition is unfortunate, the Army does not now have and has never had a policy that allows for an upgrade of a discharge solely for the purpose of obtaining VA benefits.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  


It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.  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 UD was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement, but reveals an extensive disciplinary history that did not support the issuance of a general discharge by the separation authority at the time of his discharge, nor does it support an upgrade of his discharge at this time.  As a result, his overall record of service is not sufficiently meritorious to support granting the requested relief.

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)                                         AR20100027330



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ABCMR Record of Proceedings (cont)                                         AR20100027330



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