IN THE CASE OF:	  

		BOARD DATE:	  12 January 2012

		DOCKET NUMBER:  AR20110013494 


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, an upgrade of his undesirable discharge.

2.  The applicant states he was given discharge papers to sign while he was in the stockade, but he was not told the type of discharge he was given.  He further states he has never asked the Army for help, but he is currently suffering from congestive heart failure and, in effect, he would like access to Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a letter from his doctor.

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 was born on 13 February 1955 and he enlisted in the Regular Army 11 May 1972 at 17 years, 2 months, and 29 days of age.  His records show he completed basic combat training, but failed to complete advanced individual training.  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade of private/E-1 at the time of his discharge.

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

* 7 September 1972 for being absent from his unit
* 4 April 1973 for four instances of disobeying a lawful order

4.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date Expiration Term of Service) of his DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) for the following periods:

* 25 August 1972 through 27 August 1972.  
* 5 September 1972 through 6 September 1972
* 11 September 1972 through 31 October 1972
* 12 December 1972 through 25 January 1973
* 6 February 1973 through 4 March 1973
* 7 April 1973 through 22 April 1973

5.  His records contain Summary Court-Martial Order Number 273 which shows he pled guilty and was found guilty of being AWOL for the period 29 September through 1 November 1972.  In addition, the applicant's records contain a DA Form 20B (Insert Sheet to DA Form 20 – Record of Court-Martial Conviction) which shows the applicant received a summary court-martial conviction adjudicated on 9 November 1972 and approved on 9 November 1972 for being AWOL during the period 29 September 1972 through on or about 1 November 1972.

6.  Item 38 (Record of Assignments) of his DA Form 20 shows he was imprisoned from 23 April 1973 through 5 June 1973.

7.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial on 26 February 1974 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with an under other than honorable conditions character of service.  The DD Form 214 he was issued confirms he completed a total of 1 year, 3 months, and 18 days of creditable active service with 178 days of lost time.

8.  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.

9.  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, 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 was considered appropriate at the time the applicant was discharged.

10.  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.

11.  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 to upgrade his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offenses 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 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.

3.  The applicant's record of service shows he was AWOL, charged with the commission of offenses punishable under the UCMJ with a punitive discharge, and accumulated 178 days of lost time.  Based on his record of indiscipline, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general discharge.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making the applicant eligible for veterans' or medical benefits.  Further, granting veterans' 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.

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)                                         AR20110013494



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ABCMR Record of Proceedings (cont)                                         AR20110013494



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