IN THE CASE OF:	  

		BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120006836 


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 his counsel wrongfully led him to believe that a
chapter 10 discharge for the good of the service was the best course of action when, in fact, if he had been convicted by a court-martial, the sentence would have been minimal and he could have redeemed himself.  He further argues that the items found in his personal vehicle were obtained illegally because such a search was not pertinent to the original case.  Those items were not stolen government property, but rather, were bought by him and his brother-in-law.  The applicant also states he is currently applying for medical benefits from the Department of Veterans Affairs (VA) and he needs his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214.

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.  On 15 July 1975, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 11B (Infantryman).

3.  On 19 April 1976, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on two occasions and for disobeying a lawful order from a noncommissioned officer (NCO).

4.  On 10 May 1976, charges were preferred against the applicant under the UCMJ for violating:

	a.  Article 86, by failing to go at the time prescribed to his appointed place of duty, to wit:  formation, on 5 May 1976;

	b.  Article 121, by wrongfully appropriating on 5 May 1976 some hand tools of a value of about $12.30, the property of the U.S. Army; and

	c.  Article 134, by wrongfully communicating on 5 May 1976 to another Soldier a threat to "blow his brains out with a .357 magnum."

5.  On or about 25 May 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a voluntary request for 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.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or 


dishonorable discharge.  He acknowledged he had been advised of and understood his rights under the UCMJ; that he may be discharged under conditions other than honorable and furnished an Undesirable discharge Certificate, and that as a result of such a discharge, he may be ineligible for many or all benefits administered by the VA, and that he may be deprived of his rights and benefits under both Federal and State law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request and recommended he receive a general discharge.

9.  On 11 June 1976, the separation authority, a major general, approved the applicant’s request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

10.  On 22 July 1976, the applicant was discharged accordingly.  He completed
1 year and 3 days of total active service with 5 days of time lost due to AWOL.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  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.  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.

13.  The Manual for Courts-Martial (MCM) contains the maximum punishment allowed for violation of the UCMJ.  It states for:

	a.  Article 86 for failing to go to, or going from, the appointed place of duty the maximum punishment is confinement for 1 month and forfeiture of two-thirds pay per month for 1 month.

	b.  Article 121 for wrongful appropriation of a value of $500.00 or less the maximum punishment is confinement for 3 months and forfeiture of two-thirds pay per month for 3 months.

	c.  Article 134 for communicating a threat the maximum punishment is a dishonorable discharge, forfeiture of all pay and allowances, and confinement for 3 years.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to general because he was misled by counsel and would have received a minimal sentence at court-martial.  He also argues that he needs an upgrade to receive VA medical benefits.

2.  The available evidence of record clearly indicates that his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no evidence of record and the applicant did not provide any evidence that would indicate his counsel did anything illegal or out of the ordinary.


4.  The applicant's contention that he would have received a minimal sentence is not supported by any documentary evidence.  In fact, the charge of communicating a threat alone could have resulted in a dishonorable discharge and confinement for 3 years.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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 veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

6.  In view of the foregoing, there is no 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)                                         AR20120006836



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ABCMR Record of Proceedings (cont)                                         AR20120006836



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