IN THE CASE OF:	  

		BOARD DATE:	    16 August 2012

		DOCKET NUMBER:  AR20120003045 


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.

2.  The applicant states he served for 2 years and 5 months and did not have any trouble while he was serving in the field.

   a.  He married prior to entering military service when he was just 16 years of age.

   b.  While he was in the Army, he and his wife were having problems.  He was granted leave to go home a few times, but a couple of times he went absent without leave (AWOL).

   c.  He was placed in the stockade and offered an under other than honorable conditions discharge.  He wanted to be with his wife, so he agreed to the discharge.

   d.  He divorced his wife after he was discharged and remarried.  He wanted to open a business, but when he applied to the Department of Veterans Affairs (VA), he then learned the effect of his discharge on his eligibility for veterans' benefits.  

   e.  Since leaving the Army, he has continually tried to be reliable, honest, and fair with his family, friends, and employers.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and five letters of character reference.

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 20 March 1967 for a period of
3 years.  At the time he was 17 years of age and he was married.

3.  On 29 November 1967, the applicant was convicted at a special court-martial of being AWOL from 28 September to 19 November 1967.  He was sentenced to be confined at hard labor for three months (suspended for three months), forfeiture of $37 pay per month for three months, and reduction to pay grade E-1.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 21 (Time Lost) that he was AWOL from:

* 28 September through 18 November 1967 (52 days)
* 20 through 26 February 1968 (7 days)
* 7 March through 15 April 1968 (82 days)
* 5 through 8 April 1969 (4 days)
* 9 October 1969 through 22 February 1971 (502 days)

5.  Court-martial charges were preferred against the applicant for being AWOL from 9 October 1969 to 23 February 1971.

6.  The applicant consulted with legal counsel and he voluntarily requested discharge in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.

	 	(1)  The applicant submitted a statement with his request and recounted his time in the Army highlighted by his periods of AWOL and confinement.  He also provided details of civilian charges that were filed against him.  He offered that he received punishment under Article 15 on three or four occasions for sleeping on guard duty and being AWOL while in Vietnam.  After returning to the United States, he was hospitalized due to a relapse of malaria.  He tried to get reassigned to Fort Ord, but could not, so he went AWOL in October 1969.

	 	(2)  In an addendum to his statement, the applicant offered information regarding his problems in adjusting to school and family requirements that contributed to his difficulties in the Army.  He acknowledged, "I don't feel that I can be of any benefit to the Army" and he requested approval of his discharge.

	c.  The applicant and his counsel placed their signatures on the document.

7.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an Undesirable Discharge Certificate.

8.  The separation authority approved the applicant's request for discharge and directed he receive an Undesirable Discharge Certificate.

9.  The applicant was discharged on 9 June 1971 in accordance with Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial with an undesirable discharge.

	a.  He had completed 2 years, 5 months, and 3 days of active service.

	b.  He had 647 days of time lost under Title 10, U.S. Code, section 972.

10.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  In support of his application, the applicant provides the following documents:

   a.  four letters from employers who have known the applicant for various lengths of time ranging from 8 to 30 years.  They attest to his reliability, trustworthiness, good judgment, financial responsibility, and commitment to his family; and

   b.  a letter from his father-in-law, Mr. Wayne S----, who has known the applicant for 20 years.  He attests to the applicant's dedication to his wife and children, work ethic, and integrity.  He states that, as an employer, the applicant willingly offers a second chance to others who are struggling with various challenges.  He adds that, as a result of the challenges the applicant faced in his youth, he seeks opportunities to act as a positive force of change for children who are also facing difficulties.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

  	a.  Chapter 10 provides that a member who 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 contends his undesirable discharge should be upgraded based on his post-service conduct.

2.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service during the period of service under review. Considering all the facts of the case, the characterization of service was appropriate and equitable.

3.  The applicant elected to request discharge in lieu of being court-martialed.

	a.  He had a total of 647 days (more than 21 months) of lost time and he completed about 29 months of his 3-year enlistment obligation.

	b.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

4.  The applicant's contentions and the letters that were provided concerning his post-service conduct were considered.  However, they are insufficient to outweigh his misconduct while he was in the Army or support an upgrade of his discharge.

5.  Therefore, there is no basis for granting the requested relief.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' 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 veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

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)                                         AR20120003045



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ABCMR Record of Proceedings (cont)                                         AR20120003045



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