IN THE CASE OF:	  

		BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120022636 


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 to a general, under honorable conditions discharge.

2.  The applicant states:

	a.  He served an honorable enlistment even though it was only 1 year, 3 months, and 6 days.  He then reenlisted for a 3-year commitment of which he served honorably for 1 full year prior to going absent without leave (AWOL).  He began missing time because his spouse had taken up residence with another man and they were relocating on a regular basis in order to keep his 20-month old daughter from him.  Upon successful tracking of his daughter, he would return to base of his own free will and face the punishment.   

	b.  He has no supporting evidence of this but had he known the truth about his discharge back in 1973, he would never have agreed to the character of service.  He only has the hearsay of what his commander told him.  He was young, betrayed by his spouse, and at the time felt his daughter was more important.  Upon his attaining 6 months of good behavior, he requested his discharge be upgraded automatically to a general discharge but he was told it was not upgradable at all and he was not due any Department of Veterans Affairs (VA) benefits.

	c.  He had always requested prior approval for leave from his commander but the commander did not care about his personal situation and always refused to grant leave.  After several periods of missing time, his commander recommended him for an under other than honorable conditions discharge and stated it would be upgraded to a general discharge after 6 months if he stayed out of trouble.  He trusted this man and accepted his offer.  It has only come to his attention this year that he may qualify for some heath care benefits at his local VA medical center for his disability related to his military service.

3.  The applicant provides two DD Forms 214 and two statements of support.

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's records show he enlisted in the Regular Army (RA) on 17 July 1968.  On 22 October 1969, he was honorably discharged for the purpose of immediate reenlistment.  He completed 1 year, 3 months, and 6 days of net active service during this period of service.

3.  He reenlisted in the RA on 23 October 1969 when he was 20 years of age for a period of 6 years.  He was subsequently assigned to the Student Battalion, U.S. Army Garrison, Fort Benjamin Harrison, IN.

4.  On 18 March 1971, he was convicted by a special court-martial of one specification of being AWOL from his assigned unit from 30 November 1970 to 8 February 1971.

5.  On 8 July 1971, he was assigned to the 75th Ranger Battalion, Fort Carson, CO.  

6.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 11 January 1972 for being AWOL from his assigned unit from 1 to 6 January 1972
* 15 February 1972, for disobeying a lawful regulation

7.  On 16 February 1972, he was assigned to the 1st Battalion, 10th Infantry Regiment, Fort Carson, CO.

8.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 4 April 1972, for being AWOL from his assigned unit from 23 to 30 March 1972
* 7 May 1972, for failing to report at the prescribed time to his appointed place of duty

9.  On 25 March 1973, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls as a deserter.

10.  On 25 June 1973, he was returned to military control at Fort Leonard Wood, MO.

11.  On 10 July 1973, court-martial charges were preferred against him for one specification of being AWOL from 25 March to 25 June 1973.

12.  On 20 July 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

13.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life.

14.  In a self-authored statement, dated 20 July 1973, he stated:

	a.  He could no longer cope with the ways of the Army as having someone on his back at his job irritated him so much that he would curse at his leaders.  While in Europe, he was busted in grade for taking his spouse to Frankfurt which his commanders could not understand.  This year both his grandmothers died and his spouse divorced him putting him in a nervous condition.  At the same time, he was given orders to return to Europe.  Out of his daughter's 4 years of life, he had only been with her about nine times for various lengths of time.  He returned to the Army willingly for only one reason, to be discharged.  He wanted to be a man again and not a puppet on the Army's strings.

	b.  He also felt he could get a job as a civilian with better pay than what the Army offered.  He wants to do what he wants and when he wants.  He cannot do that while in the Army.  Now it was time for him to get out so someone else could learn to live where he had failed.  His hope was to be discharged for the good of the Army and his sanity.  He could never go back to duty and was afraid he would end up back in the stockade.  All he was asking for was to be discharged.

15.  On 21 August 1973, his immediate commander recommended approval of the applicant’s request for discharge and recommended the issuance of an Undesirable Discharge Certificate.  The commander stated the applicant had demonstrated that he was unwilling to adjust to military service and further disciplinary or rehabilitative action would be futile.  In addition, in view of his statements a discharge would be in the best interest of the Army.

16.  On 21 August 1973, his senior commander recommended approval of the applicant's request for discharge and recommended the issuance of an Undesirable Discharge Certificate.  He stated it was his opinion the applicant would never be a productive Soldier; therefore, he should be discharged.

17.  On 24 August 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate.

18.  On 28 August 1973, he was discharged accordingly.  The DD Form 214 he was issued for this period of service shows he was discharged under the provisions of 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 characterization of service.  During this period of service he completed 3 years, 4 months, and 16 days of net active service with 174 days of lost time.

19.  There is no evidence in the applicant's available record that shows he ever requested assistance from his command in dealing with any family problems while serving on active duty. 

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

21.  The applicant provides two statements of support, dated 7 November 2012, wherein two of his brothers stated they knew the applicant was looking for his daughter serveral times while on leave from the Army.

22.  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, 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.

23.  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.

24.  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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  
3.  At the time he requested his discharge, he was almost 24 years of age and stated he could no longer cope with the ways of the Army, he did not like being told what to do, he did not want to be stationed in Europe away from his daughter, he felt he could get a better job as a civilian, and all he wanted was to be discharged.  The evidence of record does not show, and he did not provide any evidence that shows, he requested assistance in dealing with any family problems while serving on active duty.

4.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 6 months, the Army has never had a policy of automatically upgrading discharges.  In addition, the evidence of record does not show he was ever briefed that his discharge could be upgraded to a general discharge after 6 months of good behavior. 

5. The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  The evidence of record shows he went AWOL on four separate occasions and had received a special court-martial and NJP on two occasions for being AWOL. He received NJP on two other occasions for disobeying a lawful regulation and failure to report to his appointed place of duty.

7.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.

8.  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)                                         AR20120022636





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ABCMR Record of Proceedings (cont)                                         AR20120022636



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