IN THE CASE OF:	  

		BOARD DATE:  2 February 2012

		DOCKET NUMBER:  AR20110016195 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he believes the record is in error or unjust because the government spent thousands of dollars before and after his enlistment to train him.  After one year and three months of service, his entire life has been negatively affected by his undesirable discharge.  He states he was never provided representation and did not understand the stigma associated with an undesirable discharge.  He expresses remorse and further states he needs his discharge upgraded to be eligible to draw benefits from his pension. 

3.  The applicant provides:

* Certificate of Completion of Apprenticeship
* Social Security Card
* Driver License
* DD Form 214 (Report of Separation From Active Duty)
* self-authored statements
* Resume of Corpsmember’s Qualification
* Occupational Readiness Record
* Job Corps Placement and Assistance Record
* Newspaper clipping
* his father’s obituary
* Certification of Live Birth
* General Education Development Test results
* High School Equivalency Diploma
* Apprenticeship Agreement
* National Center for Construction Education and Research Transcripts
* North Carolina Department of Labor Completion of Apprenticeship
* Associate in Applied Science Diploma
* College Transcripts
* Letters of Employment 
* Resume
* Certificate of Completion
* Certificate of Parole
* Social Security Statement
* Letters from the Department of Veterans Affairs
* Physician’s letter dated 12 March 1997
* Hospital Bill
* Appendix A:  Alcohol/Drug Free Work Place Policy and Tax Form

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 enlisted in the Regular Army on 18 September 1972 at the age of 19 years, 7 months, and 25 days.  His record shows he completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).  The highest rank/grade he attained while serving on active duty was private/E-2.  However, he held the rank/grade 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:

* 9 July 1973 for being absent from his unit
* 2 November 1973 for two instances of failing to go to his appointed place of duty
* 23 November 1973 for disobeying a lawful order

4.  On 16 March 1974, charges were preferred against the applicant for being absent without leave (AWOL) for the period 3 through 28 February 1974 and      5 through 16 March 1974.  On 16 March 1974, the commander acknowledged that the applicant had been informed of the charges.

5.  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 AWOL or confined for the following periods:

* 6 June through 2 July 1973  
* 10 July through 3 August 1973
* 3 through 27 February 1974
* 5 through 15 March 1974
* 16 March through 20 May 1974

6.  On 25 March 1974, the applicant consulted with legal 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 a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all 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.

8.  On 17 May 1974, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 4 June 1974, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he completed 1 year, 3 months, and 17 days of creditable active service with 150 days of lost time.


9.  The applicant provides numerous documents which attest to his post-service education, employment and conduct.

10.  On 11 December 1979, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied.  

11.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

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.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support his request.

2.  Records show the applicant was over 19 years of age at the time of his offenses.  There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.

3.  Notwithstanding the supporting statements provided by the applicant, post-service conduct alone is not a basis for upgrading a discharge.  The applicant's record shows he was charged with the commission of an offense 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.  

4.  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.
 
5.  The applicant's record of service shows he was either AWOL or confined for 150 days.  Based on this record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.

6.  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 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)                                         AR20110016195



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ABCMR Record of Proceedings (cont)                                         AR20110016195



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