BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110013539 


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 his undesirable discharge (UD) be upgraded to an honorable discharge (HD).  

2.  The applicant states he is requesting an upgrade of his discharge in order to receive health benefits.  He claims the time lost was due to his godmother’s illness, which resulted in her death.  He claims he was the only one who could be with her during her illness.  He further claims his son and wife both suffered from asthma which resulted in their hospitalization.  

3.  The applicant provides a self-authored statement 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’s record shows he enlisted in the Regular Army on 
1 November 1974, and was trained in and awarded military occupational specialty (MOS) 94B (Food Service Specialist).  His record documents no acts of valor or significant achievement.    

3.  On 9 June 1975, the applicant departed absent without leave (AWOL) from his unit at Fort Sill, Oklahoma.  He was dropped from the rolls of the organization on 8 July 1975, and remained away until returning to military control at Fort Hood, Texas on 30 December 1975.  

4.  After a court-martial charge was preferred against the applicant for his AWOL offense, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment under the UCMJ, and of the procedures and rights available to him.  Subsequent to receiving this counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  In his request for discharge, he acknowledged his understanding that he could receive a UD discharge, and as a result of receiving this type of discharge he would be deprived of many or all Army benefits, that he could be ineligible for benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 

5.  The applicant’s request for discharge was approved and his discharge was directed in Headquarters, III Corps and Fort Hood, Fort Hood, Texas Special Orders 26, dated 5 February 1976.  

6.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on the date of his discharge shows he completed 
8 months and 24 days of creditable active military service and accrued 221 days of time lost due to AWOL.  

7.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations. 

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge an UD was issued for members separating UOTHC.  

9.  Paragraph 3-7a of the same regulation 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.  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 for upgrade of his UD in order to receive health benefits has been carefully considered.  However, discharges are not upgraded solely for the reason of receiving benefits and there is insufficient evidence to support an upgrade of his discharge on the merits.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  
It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  In his request for discharge, the applicant clearly acknowledged the possibility of receiving a UD and that he understood the possible effects of receiving this type of discharge which included the loss of health/medical benefits.  The UD received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

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)                                         AR20110013539



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ABCMR Record of Proceedings (cont)                                         AR20110013539


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