BOARD DATE:	  29 November 2012

		DOCKET NUMBER:  AR20120009065 


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 discharge under other than honorable conditions to honorable in order to make him eligible to receive veterans' benefits and services.

2.  The applicant states he was told his discharge would be upgraded to honorable 7 years after his separation, but it was not.  Failing to upgrade his discharge has resulted in an injustice for 32 years because it has caused him undue stress and hardship for medical benefits.  As he has no other means of insurance or assistance, he needs this upgrade in order to be eligible to receive veterans' medical benefits for treatment of his mental and physical conditions. 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge 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 15 November 1979 and possessed military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private/E-1.

3.  The applicant's record contains:

	a.  DA Form 2627 (Record of Proceedings Under Article 14, Uniform Code of Military Justice (UCMJ)), dated 17 January 1980, which shows he accepted nonjudicial punishment for violating Article 86 of the UCMJ by departing his unit in an absent without leave (AWOL) status for 1 day.

	b.  a DD Form 458 (Charge Sheet), dated 9 March 1981, that shows court-martial charges were preferred against him for:

		(1)  two specifications of violating Article 86 of the UCMJ by departing his unit in an AWOL status on two occasions between 7 March 1980 and 5 March 1981.

		(2)  two specifications of violating Article 91 of the UCMJ by disobeying a lawful order from a senior noncommissioned officer (NCO) and by being disrespectful in language toward a senior NCO.

		(3)  one specification of violating Article 134 of the UCMJ by wrongfully communicating a threat to a senior NCO.

4.  On 10 March 1981, 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written 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.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected to submit a statement in his own behalf wherein he stated he wanted to get out of the Army because he just could not adjust to military life.  He added that he was a dropout so, he would probably go back to school, try to get his discharge upgraded, try to become a respectful citizen, and live a good life.  He concluded that he just could not shoot guns because they scared him to death on the range.

5.  The applicant's chain of command recommended approval of his request with the issuance of an Under Other than Honorable Conditions Discharge Certificate.
17 March 1981, the separation authority approved the applicant's discharge request and directed that he be reduced in grade to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 and furnished an Under Other than Honorable Conditions Discharge Certificate. 

6.  His DD Form 214 (Report of Separation from Active Duty) shows that on         18 March 1981, he was discharged accordingly.  He was issued an Under Other than Honorable Conditions Discharge Certificate.  He completed 4 months and 28 days of creditable active service with 342 days of time lost due to being AWOL.

7.  The applicant's record is void of any evidence and he has failed to provide any evidence that shows he was ever told his discharge would be automatically upgraded at any point in time.

8.  The applicant's father petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge under other than honorable conditions to an honorable discharge.  In his request he stated the applicant suffered from a nerve problem while he was in the Army and was still experiencing difficulty from it at the time.

9.  On 15 June 1983, the ADRB informed the applicant's father that their policy only provided for processing applications on behalf of former service members (FSM) when accompanied by documentation showing the FSM was incompetent and unable to file an appeal themselves.  The applicant's father was advised that his application was being placed on hold for a period of 30 days pending receipt of the appropriate documentation.  He was also advised that failure to provide the documentation within 30 days would result in closure of his case without further action.  On 18 July 1983, the application was returned to the applicant's father without action by the ADRB.  The applicant's record is void of any evidence showing he or his father ever reapplied to the ADRB.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 to an individual who was discharged for the good of the service at the time.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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's contention that his record should be corrected by upgrading his under other than honorable conditions discharge to an honorable discharge was carefully considered and determined to lack merit.

2.  The applicant's record is devoid of any evidence and he did not provide any evidence that he was ever told his discharge would be automatically upgraded at a later date.  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.

3.  His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20120009065



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ABCMR Record of Proceedings (cont)                                         AR20120009065



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