IN THE CASE OF:	  

		BOARD DATE:	  16 February 2012

		DOCKET NUMBER:  AR20110015124 


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 a general discharge.  

2.  The applicant states that he wants his discharge upgraded so he can qualify for the Department of Veterans Affairs (VA) medical benefits.  He went absent without leave (AWOL) to save his mother from committing suicide.  He had psychological problems due to his father's suicide on 5 September 1970.  His father shot himself because of Chromes disease.  

3.  He provides:

* Four DA Forms 2627-1 (Record of Proceedings Under Article 15, UCMJ (Uniform Code of Military Justice)
* DA Form 20 (Enlisted Qualification Record), pages 2 and 4
* His request for discharge for the good of the service package
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Father's Certificate of Death
* Letter from the National Personnel Records Center, St. Louis, MO

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 military records show he enlisted in the Regular Army, in pay grade E-1, on 27 February 1970, for 3 years, at Fort Lewis, WA.  He completed advanced individual training for military occupational specialty 67B (Airplane Repairman) at Fort Rucker, AL.  He was reassigned to Fort Belvoir, VA, in August 1970.

3.  On 13 January 1971, he was given a compassionate reassignment from Fort Belvoir, VA to Fort Lewis, WA.

4.  Between 6 January and 3 May 1971, he accepted four nonjudicial punishments under Article 15, UCMJ, for being AWOL from 21 December 1970 to 6 January 1971 and failure to repair on three different occasions.

5.  16 August 1971, special court-martial charges were preferred against him for being AWOL from 1 June to 15 August 1971.

6.  After consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under conditions other than honorable and furnished a UD Certificate. He further acknowledged he understood as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected to submit a statement in his own behalf.

7.  In the applicant's statement, he stated, he had been a model Soldier until 5 September 1970.  His father and mother had been fighting and were getting a divorce.  That night his father committed suicide.  His mother was very guilty and turned to alcohol.  He went on emergency leave to try and help and went AWOL 


for the first time.  He received extra duty and went AWOL again and he would probably go AWOL again.  He requested to be discharged under chapter 10.

8.  On 25 August 1971, the applicant’s company commander recommended approval of the applicant’s request and issuance of an UD Certificate.  The company commander stated that the applicant's attitude and conduct were not conducive to rehabilitation.  

9.  On 7 September 1971, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of an UD Certificate.

10.  He was discharged in pay grade E-1 on 7 September 1971, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an UD Certificate.  He was credited with completing 1 year, 3 months, and 3 days of net active service and 98 days of time lost.

11.  On 19 September 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 stated a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  An UD was normally considered appropriate at the time.

13.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  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 inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  



DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows in January 1971 the applicant received a compassionate reassignment in what appears to be an attempt to locate him closer to his family.  He was punished under Article 15 between January and May 1971 for being AWOL and failure to repair on three different occasions.  Special court-martial charges were preferred against him for an offense punishable under the UCMJ with a punitive discharge.  

2.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  He also acknowledged he understood he could be furnished an UD Certificate.  He was discharged accordingly on 7 September 1971.

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his UD.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

5.  His desire to have his UD upgraded so that he can qualify for burial benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for burial, medical, and/or other benefits administered by 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 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)                                         AR20110015124





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ABCMR Record of Proceedings (cont)                                         AR20110015124



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