IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20110001003 


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 under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states:

* he was 17 years old and had never been away from home
* his average conduct and efficiency ratings and behavior were good
* he was overwhelmed by the amount of activity and strain
* he has been subsequently diagnosed with depression and would like to gain access to Department of Veterans Affairs (VA) services to assist in getting his life back together

3.  The applicant provides a personal letter and a copy of a psychiatric evaluation.

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 8 October 1970.  His records show he completed basic combat training and was awarded military occupational specialty 36K (Wireman).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  The applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 23 February 1971 for being absent without leave (AWOL) for the period 18 January 1971 through 16 February 1971.

4.  On 17 September 1971, charges were preferred against the applicant for being AWOL for the periods:

* 18 January 1971 through 16 February 1971
* 23 May 1971 through 26 August 1971

5.  On 22 September 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 a discharge under other honorable conditions, 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.

6.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges 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 were 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.

7.  Separation approval authority documentation is not available for review.  The evidence does include a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that contains the authority and reason for the applicant's active duty discharge.  On 27 October 1971, the applicant was discharged.  The DD Form 214 he was issued confirms he completed a total of 8 months and 9 days of creditable active service with        131 days lost time.
8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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 and it was determined that there is insufficient evidence to support this request.

2.  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 Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  In the absence of evidence to the contrary, it's presumed all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was AWOL for 131 days.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general under honorable conditions discharge.

5.  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)                                         AR20110001003



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ABCMR Record of Proceedings (cont)                                         AR20110001003



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