IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130003256 


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 honorable.

2.  The applicant states he was suffering from many medical problems at the time of his less than honorable discharge.  He never realized he needed Department of Veterans Affairs medical care until presently.  He is unemployed and cannot afford health insurance.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 20 March 1970.

3.  He accepted nonjudicial punishment (NJP) on 19 May 1970 for being absent without leave (AWOL) during the period 12-18 May 1970.

4.  On 22 March 1971, he was found guilty by a special court-martial of being AWOL from 3 July 1970 through 6 February 1971.

5.  He accepted NJP on 8 July 1971 for being AWOL during the period 5-8 July 1971.

6.  He was again AWOL on 2 August 1971 and returned to military control on 31 January 1972.

7.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him for being AWOL from 2 August 1971 to 31 January 1972.

8.  On 4 February 1972, he consulted with legal counsel and requested 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, under circumstances which could lead to a bad conduct or dishonorable discharge.  He indicated that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be deprived of many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

9.  On 21 March 1972, the appropriate authority approved his request and directed he receive an Undesirable Discharge Certificate.  On 3 April 1972, he was discharged accordingly.  His DD Form 214 shows he completed 6 months and 14 days of active duty service and that he accrued 548 days of lost time.

10.  There is no evidence indicating he was suffering from a disabling medical condition at the time of his AWOL offenses or at the time of his discharge.

11.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10, 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.

	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 contends that his undesirable discharge should be upgraded to honorable because he was suffering from many medical problems at the time of his discharge.  However, there is no evidence in the available records that support his contention.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It also shows that after consulting with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His voluntary request for discharge to avoid trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

3.  His record of indiscipline includes a special court-martial conviction, NJP on two occasions, additional court-martial charges for AWOL, and 548 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service does not support an upgrade of his discharge to honorable or to general, under honorable conditions.

4.  The ABCMR does not grant discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Each case is individually decided based on evidence indicating an error or injustice occurred.  Based on the foregoing evidence, there is no basis to grant the 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 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)                                         AR20130003256



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ABCMR Record of Proceedings (cont)                                         AR20130003256



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