IN THE CASE OF:	  

		BOARD DATE:	  4 October 2011

		DOCKET NUMBER:  AR20110006015 


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, his undesirable discharge be upgraded to a general or an honorable discharge.

2.  The applicant states he was discharged under questionable circumstances.  He feels he has become a better person and would like to receive benefits from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional evidence.

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.  He enlisted in the Regular Army on 1 November 1966 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76A (Supplyman).

3.  On 1 March 1967, he was tried before a summary court-martial.  He pled guilty and was found guilty of being absent without leave (AWOL) from on or about 30 January to on or about 19 February 1967.

4.  On 2 June 1967, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 7 March to on or about 
4 May 1967.

5.  On 3 February 1968, he was tried before a special court-martial.  He pled guilty and was found guilty of being AWOL from on or about 16 September 1967 to on or about 11 January 1968.

6.  He accepted nonjudicial punishment (NJP) on:

* 10 October 1968 for being AWOL 6 - 7 October 1968
* 27 June 1969 for being AWOL 13 - 26 June 1969
* 15 July 1969 for being AWOL 6 - 13 July 1969

7.  On 13 October 1969, court-martial charges were preferred against the applicant for:

* being AWOL 6 - 14 July 1969
* being AWOL from on or about 28 July to on or about 7 October 1969

8.  On 10 October 1969, 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 court-martial.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Undesirable Discharge Certificate

9.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits 
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

10.  On 30 October 1969, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate.

11.  On 30 October 1969, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 and issued an Undesirable Discharge Certificate.  He completed 1 year and 8 months of active service that was characterized as under conditions other than honorable.  He had 486 days time lost.

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.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

13.  Army Regulation 635-200 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 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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process, and the undesirable discharge he received accurately reflected his overall record of service at the time it was issued.  

2.  The reason for his discharge and the characterization of service were both proper and equitable.  Further, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  His records show he accepted NJP on three occasions and was convicted by two special courts-martial and one summary court-martial.  In addition, he had 486 days of time lost.  Therefore, his service is considered unsatisfactory and there is no basis to upgrade his undesirable discharge to either an honorable or a general discharge.

3.  The ABCMR does not correct records solely for the purpose of establishing eligibility for benefits.  In addition, granting veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.
   
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)                                         AR20110006015



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ABCMR Record of Proceedings (cont)                                         AR20110006015



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