IN THE CASE OF:	  

		BOARD DATE:	  3 November 2011

		DOCKET NUMBER:  AR20110009510 


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 an honorable discharge.

2.  He states he wants an upgrade for benefits.  He believes he was given bad information from the Judge Advocate General officer at the time of his discharge.

3.  He provides three character reference letters.

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.  His military records show he was inducted into the Army of the United States on 13 August 1970.  He completed training and was awarded military occupational specialty 13A (field artillery basic).  The highest rank/grade he attained was specialist four/E-4.

3.  On 16 February 1971, he was convicted by a summary court-martial pursuant to his guilty plea of being absent without leave (AWOL) during the period 19 January to 13 February 1971.

4.  On 1 February 1972, charges were preferred against the applicant for the three specifications of AWOL during the periods of:

* 16 to 26 August 1971 from his unit in Vietnam
* 10 September to 18 November 1971 from his unit in Vietnam
* 2 December 1971 to 1 February 1972 from the Personnel Control Facility

5.  On 2 February 1972 after having consulted with legal counsel, he voluntarily requested a 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.  He acknowledged he was not subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to his request.

6.  He further acknowledged he understood if his discharge request were accepted, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit a statement on his own behalf.  He further acknowledged he had been advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and of the effects of this request for discharge and the rights available to him.  He waived his rights in conjunction with this consultation.

7.  On 17 April 1972, the Staff Judge Advocate indicated the applicant's request for discharge had been examined by his office and the charges were in proper form and were punishable by either a dishonorable or a bad conduct discharge.  He recommended approval of the applicant's request for discharge and issuance of an Undesirable Discharge Certificate.

8.  On 20 April 1972, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed the issuance of an undesirable discharge.

9.  On 10 May 1972, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 1 year, 3 months, and 13 days of creditable active service with 168 days of lost time.

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

11.  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(s) charged, the 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 to an individual who was discharged for the good of the service.

12.  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.

13.  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.  He was convicted by a summary court-martial of being AWOL for 25 days and he had court-martial charges preferred against him for being AWOL for 143 days.

2.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to an honorable or a general discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  His character and post-service conduct as attested to in the supporting statements are noteworthy.  However, his character of service is based on his performance and conduct during the period in which he served.  He has not provided any evidence to mitigate the misconduct he committed during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there is no basis for granting the 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 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)                                         AR20110009510



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ABCMR Record of Proceedings (cont)                                         AR20110009510



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