BOARD DATE:	  7 February 2013

		DOCKET NUMBER:  AR20120014019 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states he:

* served 3 years honorably before his reenlistment
* went absent without leave (AWOL) following the birth of his son
* turned himself in 
* regrets his actions
* was very young
* wants his discharge upgraded so he can use Department of Veterans Affairs (VA) benefits 

3.  The applicant provides DD Forms 214 (Report of Separation from Active Duty) for the periods ending 30 July 1975 and 6 April 1976.

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 born on 12 April 1954.  He enlisted in the Regular Army on 20 October 1972 for a period of 3 years.  He completed his training and was awarded military occupational specialty 64C (motor transport operator).  On 
30 July 1975, he was honorably discharged for immediate reenlistment.  He reenlisted on 31 July 1975 for a period of 4 years.   

3.  He went AWOL on 30 December 1975 and returned to military control on 
1 March 1976.  On 2 March 1976, charges were preferred against him for the AWOL period.  Trial by special court-martial was recommended.

4.  On 5 March 1976, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he joined the Army for a job
* he believes the Army is a bad place to be with a family
* he wants out due to family hardships
* if he were returned to duty he would go AWOL again

5.  On 16 March 1976, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

6.  On 6 April 1976, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 3 years, 3 months, and 15 days of total active service with 62 days of lost time.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within that board's 15-year statute of limitations.
8.  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 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 to an individual who was discharged for the good of the service.

9.  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.

10.  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 contends he was young.  However, age is not a sufficiently mitigating factor.  He was age 18 when he enlisted and successfully completed his training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who enlisted and successfully completed their military terms of service.  

2.  He wants his discharge upgraded so he can obtain VA benefits.  However, a discharge is not changed for the purpose of obtaining benefits from the VA.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.


4.  His honorable service from October 1972 to July 1975 was noted.  However, his record of service during his last enlistment included 62 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20120014019





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ABCMR Record of Proceedings (cont)                                         AR20120014019



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