BOARD DATE:	  1 November 2012

		DOCKET NUMBER:  AR20120007295 


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 to a general, under honorable conditions discharge.

2.  The applicant states there was a death in his family, it was verified by the American Red Cross; however, he was denied emergency leave.  He also states he was taken to the airport by a military police sergeant and went home anyway. His reason for the requested upgrade is for commissary and medical privileges.

3.  The applicant provides no additional documentary evidence in support of his application.

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 27 September 1974 for a period of 3 years under the U.S. Army Hawaii, 25th Infantry Division enlistment option.

3.  Upon completion of training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

4.  He was assigned to Company A, 1st Battalion, 5th Infantry, 25th Infantry Division, Hawaii, on 11 February 1975.

5.  The applicant was reported absent without leave (AWOL) on 2 June 1975.  He surrendered to military authorities on 3 July 1975 at the U.S. Army Armor Center, Fort Knox, KY.

6.  Court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, with the specifications of absenting himself from his unit/organization:

* from 2 June to 3 July 1975
* from 14 July to 4 October 1975

7.  The applicant consulted with legal counsel and he voluntarily 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.  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 Veterans Administration, 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.  The applicant elected to submit a statement with his request.  He indicated, "I went AWOL for the benefit of my family.  My wife drew up divorce papers and told me that (if) I didn't come home with my family where I belong that there wouldn't be any family to come home to.  So I caught the first plane home."  He added, "I admit the Army is good for some people.  I am just not one of them.  They teach you things and everything else, but it's not for me."

	c.  The applicant and his counsel placed their signatures on the document.
8.  The applicant's commander recommended approval of the request for discharge with an Undesirable Discharge Certificate.

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

10.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 29 October 1975 in accordance with 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 discharge.

	a.  He completed 9 months and 12 days of active service this period.

	b.  He had 113 days lost under Title 10, U.S. Code, section 972.

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

12.  Army Regulation 635-200, in effect at the time, 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 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 that his under other than honorable conditions discharge should be upgraded because there was a death in his family and he was denied emergency leave to go home.

2.  The evidence of record shows that at the time he requested discharge for the good of the service, the applicant acknowledged going AWOL because his wife threatened to divorce him.  Thus, the applicant's contention is not supported by the evidence of record.

3.  Records show the applicant was charged under the UCMJ with violating Article 86 for being AWOL from 2 June to 3 July 1975 and from 14 July to           4 October 1975.

4.  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.

5.  The applicant elected to request discharge in lieu of being court-martialed, he had 113 days lost (i.e., 3 months and 23 days), and he completed only about one-fourth of his 3-year enlistment obligation.  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 a general discharge.

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 health care (and other benefits) should be addressed to the Department of the Veterans Affairs.

7.  In view of the foregoing, there is no basis for granting the requested relief.

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)                                         AR20120007295



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007295



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1