IN THE CASE OF:
BOARD DATE: 13 October 2011
DOCKET NUMBER: AR20110009391
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 that his discharge under other than honorable conditions be upgraded to an honorable discharge.
2. The applicant states that he made mistakes as a young man. He has paid for the mistakes and would like his discharge to be upgraded so he can receive veterans benefits.
3. The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).
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 applicants 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 applicants 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 1 February 1974. While still undergoing initial entry training, he was absent without leave (AWOL) from his unit.
3. Charges were preferred under the Uniform Code of Military Justice (UCMJ) for two specifications of violation of Article 86 for being AWOL from 1 March through 30 March 1974, and 2 May through 5 September 1974.
4. The applicant consulted with 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 being discharged under other than honorable conditions, and of the procedures and rights available to him. The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.
5. The separation authority approved the applicant's request for discharge and directed issuance of an undesirable discharge. On 3 October 1974, he was discharged accordingly. He had 2 months and 27 days of creditable service.
6. There is no record that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.
7. 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 periods of AWOL in excess of 30 days.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 Veterans Administration 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.
b. Paragraph 3-7 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. 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 applicants administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.
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 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) AR20110009391
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
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