IN THE CASE OF:	  

		BOARD DATE:	  19 June 2012

		DOCKET NUMBER:  AR20120000497 


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 discharge be upgraded to an honorable or general, under honorable conditions discharge.

2.  The applicant states he punched a major and he regrets it.  His temper got the best of him.  He now has control of his temper and is in need of medical care.  The Department of Veterans Affairs (VA) said if he got his discharge upgraded he could apply for VA health care.  He has not been in any trouble since he was in the service.  He has never been in jail or prison and has had no trouble with the law except for a speeding ticket.

3.  The applicant provides 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's records show he enlisted in the Regular Army on 14 August 1968.  He was assigned to Fort Lewis, WA, for basic combat training.

3.  On 3 September 1968, he was reported absent without leave (AWOL) from his assigned unit and on 2 October 1968 he was dropped from the rolls.

4.  On 5 November 1968, he was convicted by a summary court-martial of one specification of being AWOL from 3 September to 11 October 1968.

5.  On 2 December 1968, he was reported absent without leave (AWOL) from his assigned unit and subsequently he was dropped from the rolls.

6.  On 8 April 1969, he was returned to military control.

7.  On 6 May 1969, he was convicted by a special court-martial on one specification of being AWOL from 2 December 1968 to 7 April 1969.

8.  On 27 August 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from his assigned unit from 28 to 30 July 1969 and from 24 to 26 August 1969.

9.  On 13 November 1969, court-martial charges were preferred against him for two specifications of being AWOL from 23 to 27 August 1969 and from 30 August to 9 November 1969.

10.  On 15 November 1969, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.

11.  Following consult with legal counsel, he 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.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

12.  On 26 November 1969, his immediate commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  The commander stated the applicant had been AWOL on numerous occasions and during an interview the applicant had stated he was very positive that he wanted out of the Army.

13.  On 3 December 1969, his senior commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  He stated due to the applicant's military record and interviews conducted with him any further attempts at rehabilitation would be futile.

14.  On 17 December 1969, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

15.  On 23 December 1969, he was discharged 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 under other than honorable conditions characterization of service.  The DD Form 214 he was issued shows he completed 5 months and 11 days of active service with 240 days (or 8 months) of time lost due to AWOL and confinement.

16.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

17.  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. 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.  At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

18.  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.

19.  Army Regulation 635-200, paragraph 3-7b, provides that 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 the applicant was charged with the commission of offenses 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received a summary and special court-martial on two occasions for being AWOL, and NJP on another occasion for being AWOL.  He subsequently went AWOL again which led to the court-martial charges against him that led to his discharge.  

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge or a general discharge.




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)                                         AR20120000497





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ABCMR Record of Proceedings (cont)                                         AR20120000497



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