IN THE CASE OF:	  

		BOARD DATE:	 1 September 2011 

		DOCKET NUMBER:  AR20110003716 


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 so he can access the Department of Veterans Affairs (VA) and get some help.

2.  The applicant states he made some mistakes and he was immature.  He is now 55 years old.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty)
* his State of Michigan Certificate of Live Birth

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 27 June 1974 at the age of
19 years, 3 months, and 7 days.  He completed training and he was awarded military occupational specialty (MOS) 76P (stock control and accounting specialist).  He was subsequently awarded MOS 76T (aircraft repair parts specialist) as his primary MOS with designation of 76P as his secondary MOS.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 13 August 1974 for being absent from his unit from 11 to 12 August 1974
* 18 April 1975 for being absent from his place of duty on 11 April 1975
* 4 August 1975 for being absent from his unit from 18 to 30 July 1975
* 25 September 1975 being absent from his place of duty on 17 September 1975

4.  On 18 August 1975, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 22 October 1975 to 28 October 1975 and for disobeying a lawful order.  He was sentenced to a bad conduct discharge, confinement at hard labor for 45 days, forfeiture of $150.00 per month for 2 months, and reduction to private (PV1)/E-1.  The court-martial convening authority suspended the bad conduct discharge and any confinement at hard labor in excess of 35 days.

5.  The applicant's discharge packet is not available for review.  However, his record contains a DD Form 214 that shows the applicant was discharged on
25 February 1976 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, with an Undesirable Discharge Certificate.  He completed 1 year, 6 months, and 11 days of total active service with 48 days time lost.

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

7.  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.

8.  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.

9.  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 request for an upgrade of his under other than honorable conditions discharge was carefully considered and determined to be without merit.

2.  Records show the applicant accepted his first NJP on 13 August 1974, less than 2 months after entering active service.  His record further shows he received three subsequent NJPs between 18 April and 25 September 1975 for being absent from his unit or place of duty.

3.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that 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 in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that 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 ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his/her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  The Army does not have nor has it ever had a policy that provides for upgrade of a discharge based on the passage of time.  Additionally, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

6.  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)                                         AR20110003716



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ABCMR Record of Proceedings (cont)                                         AR20110003716



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