BOARD DATE:	  3 May 2012

		DOCKET NUMBER:  AR20110023599 


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.  The applicant states that he served under the conditions of the U.S. Army as required and he needs medical benefits as a result.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 23 October 1972.  He completed training and he was awarded military occupational specialty 13B (cannon crewmember).  The highest rank/grade he attained during his period of service was private (PV2)/E-2.

3.  Between April 1973 and December 1974, the applicant received nonjudicial (NJP) punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 12 April 1973 for being absent from his appointed place of duty at three separate times on 11 April 1973
* 31 October 1973 for being absent without leave (AWOL) from
1-30 October 1973
* 19 February 1974 for failing to obey a lawful order issued by a commissioned officer on 16 February 1974 and for failing to go at the time prescribed to his appointed place of duty on 17 February 1974
* 20 March 1974 for failing to go at the time prescribed to his appointed place of duty on 1 and 4 March 1974
* 24 June 1974 for failing to go at the time prescribed to his appointed place of duty on 19, 21, 22, and 23 June 1974
* 6 September 1974 for being AWOL from 3-6 September 1974
* 20 December 1974 for being absent from his unit on 16 December 1974

4.  On 28 May 1975, court-martial charges were preferred against the applicant for being AWOL from 20 February 1975 until on or about 22 May 1975.

5.  Having consulted with counsel, the applicant 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.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  The applicant submitted a statement in his own behalf.  He stated that his AWOL was caused by his inability to adjust to the Army’s way of life.  He further stated he had no intentions of trying to adjust; therefore, he desires to leave the service permanently.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate and he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 19 June 1975, the applicant’s unit commander recommended the applicant be discharged from the U.S. Army with an Undesirable Discharge Certificate.  The commander’s reason for the recommendation was the applicant’s attitude toward military life and his lack of rehabilitative potential.

7.  On 14 July 1975, the appropriate 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 with an Undesirable Discharge Certificate.

8.  On 25 August 1975, the applicant was discharged accordingly.  He completed 2 years, 3 months, and 22 days of total active service and 185 days of time lost due to AWOL.

9.  On 14 July 1981, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined he was properly discharged.  As a result, his request for discharge upgrade was denied.

10.  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, 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. 

11.  Army Regulation 635-200, paragraph 3-7b, states 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 contentions were carefully considered and found to be insufficient in merit.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of establishing eligibility for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change to his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR; therefore, any questions regarding eligibility for VA benefits should be addressed to the VA.

2.  The applicant was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of service - in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.

3.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  In view of the above, there is no basis for granting his 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 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)                                         AR20110023599



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ABCMR Record of Proceedings (cont)                                         AR20110023599



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