BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110008259 


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 to a general discharge.

2.  The applicant states he has performed more than 30 years of public service since he was discharged and he should be granted amnesty.  He adds that an upgrade of his discharge will allow him to obtain veteran's benefits.

3.  The applicant provides no additional 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 enlisted in the Regular Army (RA) for a period of 2 years on
19 November 1970.  On 25 November 1970, he extended his period of enlistment in the RA to 3 years.  He was awarded military occupational specialty 72B (Communications Center Specialist).

3.  He departed the United States for assignment in Germany on 30 May 1971.

4.  On 8 October 1971, the applicant's company commander preferred court-martial charges against him for violation of the Uniform Code of Military Justice (UCMJ):

* Article 86 (2 specifications) being absent from his appointed place of duty
* Article 121 (2 specifications) for stealing $25.00 from another Soldier and U.S. Government property worth $19.60
* Article 130 for unlawfully entering the barracks room of another Soldier with intent to commit larceny

5.  On 1 November 1971, the applicant consulted with legal counsel and 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-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.  The applicant elected not to submit statements with his request.

6.  Both the applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an undesirable discharge.

7.  On 23 November 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with the issuance of an Undesirable Discharge Certificate.


8.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 11 December 1971 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an undesirable discharge.  He completed 1 year and 23 days of net active service that included 6 months and 10 days of foreign service.

9.  The applicant submitted an application to the Army Discharge Review Board (ADRB) requesting a review of his discharge.  On 24 October 1980, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

10.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under:

* Article 86 for failing to go to the appointed place of duty at the time prescribed
* Article 121 for larceny and wrongful appropriation
* Article 130 for unlawfully entering the building or structure of another with intent to commit a criminal offense

11.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.


	c.  Chapter 3, 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 contends that his undesirable discharge should be upgraded because it will allow him to obtain veteran's benefits.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge outweigh his overall record of service.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  Records show the applicant voluntarily requested discharge for the good of the service based on violation of the UCMJ (i.e., 3 charges with 5 specifications) and he completed only about 13 months of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

4.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

5.  In view of all 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)                                         AR20110008259



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ABCMR Record of Proceedings (cont)                                         AR20110008259



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