IN THE CASE OF:	  

		BOARD DATE:	    30 August 2012

		DOCKET NUMBER:  AR20120003947 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he:

* asked for a chapter 13 discharge because his father was ill
* was told his discharge would be upgraded after 6 months
* did his tour and his family found it necessary for him to return home because of his father's illness

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 was inducted into the Army of the United States on 17 July 1972.

3.  His record contains a DD Form 458 (Charge Sheet) that shows charges were preferred against him for being absent without leave (AWOL) from 4 March to 13 May 1974.

4.  On 18 June 1974, having consulted with legal counsel, he voluntarily requested separation 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:

	a.  was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charge against him or of a lesser included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  did not desire further rehabilitation or desire to continue in the military;

	d.  understood that if his request was accepted he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law;

	e.  understood he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge;

	f.  understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

5.  He submitted a statement in his own behalf indicating that he felt the discharge was the best solution for him.  His father needed his help at home, and his father had a nervous problem and the applicant felt he could assist him.
6.  On 12 July 1974, the separation authority approved his 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 and reduction the lowest enlisted grade.  On 22 July 1974, he was discharged accordingly.  The DD Form 214 he was issued at the time shows 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.  He completed 1 year, 10 months, and 4 days of total active service with 64 days of time lost.

7.  On 23 October 1979, the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

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 Veterans Administration (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.  Chapter 13 of the regulation in effect at the time established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  It provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted, an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

	c.  Chapter 13, paragraph 13-5a provided for separation for unfitness, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, an established pattern of shirking, failure to pay just debts, failure to support dependents, and homosexual acts.  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.


	d.  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.

	e.  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 he was told his discharge would be upgraded within 6 months of his discharge from the Army.  However, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

2.  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 acknowledged he understood 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 nor was there any indication that he did not understand the seriousness of an undesirable discharge.

3.  The applicant's record shows he was AWOL for 64 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.  There is no evidence of record and the applicant did not provide any evidence that shows he requested to be discharged or that he was considered for separation under the provisions of Army Regulation 635-200, chapter 13 for an unsuitability or unfitness discharge based on his father's illness.


5.  He states he requested to be discharged in order to help his father who was ill; 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.

6   .  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.



												_______________________
               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)                                         AR20120003947



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ABCMR Record of Proceedings (cont)                                         AR20120003947



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