BOARD DATE:	    8 August 2013

		DOCKET NUMBER:  AR20130002355


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 discharge be upgraded. 

2.  The applicant stated, in effect, his discharge should be upgraded due to medical reasons.

3.  The applicant provided a DD Form 214 (Report of Separation from Active Duty) and DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 on 3 March 1972.  He did not complete training requirements and was not awarded a military occupational specialty.  The highest rank he attained while serving on active duty was private/pay grade E-2.

3.  On 4 October 1973, charges were preferred against the applicant for being absent without leave (AWOL) during the periods 12 August 1972 through 24 January 1973 and 5 February 1973 through 5 September 1973.

4.  After consulting with counsel, the applicant voluntarily 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), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life.  The applicant submitted a sworn statement on his behalf stating his wife was pregnant and his mother was sick.

5.  The appropriate authority approved his request on 18 October 1973 and the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, under other than honorable conditions on 
24 October 1973.  His DD Form 214 showed he completed 7 months and 
10 days of creditable active service with 377 days of lost time due to being AWOL.

6.  There is no evidence in the available records that indicates the applicant requested assistance with a family medical issue.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has 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, a discharge under other than honorable conditions is normally considered appropriate.


8.  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.

9.  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 request that his discharge be upgraded was carefully considered and it was determined there is insufficient evidence to support this request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  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.

3.  Based on the applicant’s record of indiscipline which includes 377 days of AWOL his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct also rendered his service unsatisfactory.  

4.  There is no evidence in the available records that indicate the applicant requested and/or was denied assistance with a family medical issue. 

5. There is no indication the applicant applied to the Army Discharge Review Board for and upgrade of his discharge within its 15-year statue of limitations.

6.  The ABCMR does not grant request for upgrade of discharges solely for the purpose of making an applicant eligible for medical benefits. 

7.  Based on the forgoing, the applicant is not entitled to an upgrade of his 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)                                         AR20120011232



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ABCMR Record of Proceedings (cont)                                         AR20130002355



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