IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029873 


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, in effect, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he had medical problems when he was discharged so his undesirable discharge was not a fair and accurate discharge.  The Department of Veterans Affairs (VA) has accepted him for VA health care.  He believes a thorough review of his situation would prove he deserves an upgrade to honorable and that he should have received a medical discharge.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 7 February 1972
* his DD Form 214 (Report of Separation from Active Duty) for the period ending 2 May 1975
* a VA Form 10-10EZ (Application for Health Benefits), dated 13 September 2010
* his VA Identification Card
* a letter to him from the Army Review Boards Agency Support Division,
St. Louis, MO, dated 30 April 2010
* a self-authored letter to the Social Security Administration, dated 17 May 2010
* a copy of his social security card


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 the Regular Army on 14 September 1971 for a period of 2 years.  He was assigned as a trainee to the 3rd Basic Combat Training Brigade, Fort Dix, NJ.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 23 October 1971, for disobeying a lawful order from a commissioned officer and for being absent without leave (AWOL) from 20 to 23 October 1971
* On 10 November 1971, for disobeying a lawful order from a noncommissioned officer (NCO
* On 30 November 1971, for disobeying a lawful order from an NCO

4.  A DA Form 268 (Report of Suspension of Favorable Personnel Action), dated 11 January 1972, shows he was flagged effective 6 January 1972 pending a special court-martial that could result in a bad conduct discharge.

5.  The specific facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 for the period ending 7 February 1972 shows he was discharged in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for the good of the service in the grade of E-1 with an under other than honorable conditions character of service and issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed 4 months and 21 days of active service with 3 days of lost time.  This DD Form 214 also shows he was administered a separation program number (SPN) of 246, which refers to a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.
6.  The applicant provides a DD Form 214 for the period ending 2 May 1975 that shows on 17 February 1975, he entered initial active duty for training (IADT) as a member of the New Jersey Army National Guard (NJARNG) and he was assigned for advanced individual training at Fort Jackson, SC.  This DD Form 214 also shows on 2 May 1975, he was honorably relieved from IADT and he reverted to the NJARNG, and he completed 2 months and 11 days of active service this period with 5 days of time lost.  This DD Form 214 is not filed in his official military personnel file (OMPF).

7.  His record contains DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ) that shows on 7 April 1975, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 1 - 5 April 1975.

8.  There is no evidence in the available record that shows he sustained any injury or that he was treated for any illness while servicing on active duty.  There are no medical records for review with this case.

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

10.  The applicant provides a VA Form 10-10EZ, dated 13 September 2010, that shows he applied to the VA for health benefits.

11.  The DD Form 214 for the period ending 2 May 1975 contains the following entries:

* Item 16a (Primary Specialty Number and Title) shows "09B (Trainee)"
* Item 18b (Prior Active Service) shows "00 00 00"
* Item 27 (Remarks), shows the entry "By direction of the Secretary of the Army the unexecuted portion of active duty training orders … is revoked by … OTAG (Office of the Adjutant General) New Jersey, dated 2 May."

12.  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.  At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  There is no evidence in the available records, and the applicant did not provide any evidence, to show he incurred any medical problems while serving on active duty.  To the contrary, it appears he was medically fit enough to subsequently enlist in the ARNG.


5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100029873



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029873



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1