IN THE CASE OF:  

		BOARD DATE:  14 February 2012

		DOCKET NUMBER:  AR20110016287 


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 upgrade of his undesirable discharge to a general discharge.

2.  He states he regrets going absent without leave (AWOL).  He was young and not too bright.  He requests upgrade of his discharge so he will be eligible for veteran's benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 inducted into the Army of the United States on 8 June 1971.  He completed training and he was awarded military occupational specialty 36K (Field Wireman).  He was 17 years, 4 months, and 16 days of age at the time of induction.

3.  He departed the United States for assignment to Korea on 10 October 1971.

4.  On 10 April 1972, charges were preferred against the applicant for violating the following Articles under the Uniform Code of Military Justice (UCMJ):

* Article 86, for being AWOL from 9 to 24 March 1972
* Article 134, for breaking restriction on 30 March 1972 and using another Soldier's drivers license with intent to deceive on 9 April 1972
* Article 95, for breaking arrest in quarters on 9 April 1972
* Article 121, for wrongfully appropriating a U.S. Army 1/4 ton cargo truck, valued at $4,050.00 

He was 18 years, 1 month, and 16 days of age at the time of his first UCMJ offense.

5.  On 10 April 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this counseling, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he indicated he understood that by requesting 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.

7.  On 14 April 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He directed the applicant 


receive an Undesirable Discharge Certificate and be reduced to private (PV1)/
E-1.  On 25 April 1972, the applicant was discharged accordingly.  He completed 10 months and 2 days of total active service with 16 days of time lost due to AWOL.

8.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within the board's 15-year statute of limitations.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 95 for breaking arrest is a bad conduct discharge, 6 months confinement, and total forfeiture of all pay and allowances.  The maximum punishment for violation of Article 121 for wrongful appropriation of any motor vehicle is a dishonorable discharge, confinement for 5 years, and total forfeiture of pay and allowances.

10.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.

	a.  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, 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 an individual who was discharged for the good of the Service.  

	b.  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.

	c.  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 a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  His service was characterized by the nature of his offenses and the circumstances of this separation.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

4.  Records show that the applicant was over 18 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20110016287



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