IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120003651 


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 (UOTHC) discharge.

2.  The applicant states he left the service when his father passed away from cancer.  He desires a discharge upgrade in order to be eligible to receive medication benefits from the Department of Veterans Affairs (VA).

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 30 April 1974. 

3.  On 23 September 1974, he received non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice for stealing a bush hat and wrongfully appropriating a vehicle. 

4.  His record contains a DD Form 3835 (Notice of Unauthorized Absence from U.S. Army) that shows on 4 August 1975 he went absent without leave (AWOL) and on 3 September 1975 he was dropped from the rolls.

5.  His record contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows he was returned to military control on 18 September 1975.

6.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for the applicant’s discharge.  The DD Form 214 shows he was discharged on 4 November 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a UOTHC characterization of service and an Undesirable Discharge Certificate.  The DD Form 214 he was issued confirms he completed a total of 1 year, 3 months, and 13 days of total active service.  He also had 82 days of time lost.

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

8.  Army Regulation 635-200 sets forth 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.  At the time, 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.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.

2.  It is presumed the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He would have acknowledged he understood that he could be ineligible for many or all benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

3.  The applicant's record shows he accepted NJP under Article 15 for theft and wrongful appropriation.  He also was AWOL for 82 days.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel for the issuance of an honorable or a general discharge.

4.  He states left the service due to his father's illness; however, there is no evidence of record or any evidence submitted by the applicant that shows he brought his father's illness to his chain of command's attention prior to going AWOL.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable 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)                                         AR20120003651





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ABCMR Record of Proceedings (cont)                                         AR20120003651



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