IN THE CASE OF:	   

		BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006304 


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 an honorable discharge.

2.  The applicant states he has trouble remembering what he did wrong.  He states he has attended training as a welder.  He has been unable to find a job.  He states the Department of Veterans Affairs (VA) denied him benefits due to his under other than honorable conditions discharge.

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.  On 26 April 1974, the applicant enlisted in the Regular Army.  He did not complete basic training.

3.  A DD Form 458 (Charge Sheet), dated 10 May 1974, shows court-martial charges were preferred against the applicant for: 

* behaving with disrespect toward a superior noncommissioned officer (NCO) 
* assaulting a superior NCO with a stick
* failure to obey a lawful order

4.  The applicant acknowledged in an undated statement that he was in pre-trial confinement from 10 May 1974 until the date of making the statement.  He also indicated he had previously received nonjudicial punishment for disobeying an order and was pending court-martial.

5.  On 22 May 1974, the applicant voluntarily 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), chapter 10.  He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to his request.

	a.  He further acknowledged that by submitting his request for discharge, he was admitting that he was guilty of the charges against him or of lesser included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He indicated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

	b.  He further acknowledged he understood that if his discharge request was accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

	c.  He elected not to submit a statement on his own behalf.

	d.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

6.  On 23 May 1974, his commander recommended that, in view of the applicant's insubordination and belligerent acts toward a senior NCO, his request for discharge be accepted. 

7.  On 31 May 1974, the separation authority approved the applicant’s request for discharge and directed that he be given an Undesirable Discharge Certificate.

8.  On 5 June 1974, he was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under conditions other than honorable.  He was issued an Undesirable Discharge Certificate.  His DD Form 214 shows he completed 1 month and 10 days of net active service.

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

10.  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, 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.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered.  However, the evidence of record does not support his request for an upgrade of his discharge.

2.  He voluntarily requested discharge from the Army under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The Board does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  

4.  He admitted he was guilty of insubordination and belligerent acts toward a senior NCO.  Based on the seriousness of his offenses, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he 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)                                         AR20130006304





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ABCMR Record of Proceedings (cont)                                         AR20130006304



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