IN THE CASE OF:	

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120021390 


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 (UD) to a general discharge.

2.  The applicant states:

* he was young, immature, and unsure of what he wanted to do with his career
* he has been an outstanding citizen since he was discharged and he needs this upgrade for possible Department of Veterans Affairs (VA) benefits

3.  The applicant provides no additional evidence.

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 in January 1953 and he enlisted in the Regular Army on 1 December 1971 at age 18.  He completed training and was awarded military occupational specialty 71B (Clerk Typist).

3.  On 7 August 1972, he was convicted by a special court-martial of being absent without leave (AWOL) from on or about 5 June to 13 July 1972.  The court sentenced him to a reduction to private/E-1, 30 days of hard labor without confinement, and restriction to his company area for 30 days.  The convening authority approved his sentence on 11 August 1972.

4.  On 20 November 1972, he was convicted by a special court-martial for being AWOL from on or about 10 October to 1 November 1972.  The court sentenced him to confinement at hard labor for 20 days and a forfeiture of $50 pay for 
2 months.  The convening authority approved his sentence on 7 December 1972.

5.  A DA Form 2496 (Disposition Form), dated 16 January 1973, shows his immediate commander initiated a request to bar his reenlistment.

6.  On 2 February 1973, the applicant's bar to reenlistment was approved.

7.  On 15 February 1973, the applicant was convicted by a special court-martial of being AWOL from on or about 12 to 22 January 1973 and for failure to go to his appointed place of duty at the time prescribed on or about 5 February 1973.  The court sentenced him to confinement at hard labor for 115 days.  The convening authority approved his sentence on 8 March 1973.

8.  On 12 April 1973, the unexecuted portion of the applicant's approved sentence to confinement at hard labor for 115 days was suspended until 9 June 1973.

9.  On 13 September 1973, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from on or about 4 to 13 September 1973.  

10.  DA Forms 268 (Report of Suspension of Favorable Personnel Actions) show the applicant departed AWOL on 2 January 1974 and he was dropped from Army rolls on 1 February 1974.


11.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  His record contains a duly-constituted DD Form 214 that shows he was discharged on 17 June 1974 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service with an Undesirable Discharge Certificate.  This form also shows he completed 1 year, 8 months, and 20 days of creditable active military service and he had 297 days of lost time.

12.  There is no evidence showing he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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, 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 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.





DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his UD to a general discharge was carefully considered.

2.  There is no evidence that shows his actions were caused by his age or that he was any less mature than other Soldiers of the same age who successfully completed their service.

3.  Discharges under the provisions of chapter 10, Army Regulation 635-200 require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

4.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making an 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, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

5.  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.




      _______ _   _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)                                         AR20120021390



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ABCMR Record of Proceedings (cont)                                         AR20120021390



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