IN THE CASE OF:	  

		BOARD DATE:  4 February 2014

		DOCKET NUMBER:  AR20130008551 


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.

2.  The applicant states:

* he was told he would have some sort of benefits when he was discharged
* he needs medical treatment from the Department of Veterans Affairs (VA)
* he was 17 years old when he joined and he was too young to know what he was doing and he had family trouble

3.  The applicant provides:

* enlistment contract
* 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 was born on 28 August 1953.  He enlisted in the Regular Army (RA) on 28 September 1970 for a period of 3 years.  He completed basic combat training.  While in advanced individual training, he went absent without leave (AWOL).  

3.  On 18 January 1970, he was convicted by a special court-martial of being AWOL from 29 November 1970 to 26 December 1970 and from 4 January 1971 to 8 January 1971.  He was sentenced to forfeit $50.00 pay per month for 
3 months and to be confined at hard labor for 100 days.  On 22 January 1971, the convening authority approved the sentence, but confinement at hard labor for 100 days was suspended for 100 days.  On 30 March 1971, the suspension was vacated.

4.  On 10 November 1971, charges were preferred against the applicant for:

* being AWOL from 5 April 1971 to 5 November 1971
* escaping from confinement

5.  Trial by special court-martial was recommended.

6.  On 19 November 1971, after consulting with counsel, the applicant submitted a request for 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.  In his request, he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:  

* he was unable to cope with or adjust to regulations due to uncontrollable circumstances at home
* he is fully aware of the disadvantages of an undesirable discharge
* if he was restored to duty he would go AWOL again


7.  On 6 December 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  On 9 December 1971, 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 Undesirable Discharge Certificate.  He completed 1 year and 1 month of total active service with 323 days of lost time.

9.  There is no evidence that shows the applicant 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.  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 he was told he would have some benefits when he was discharged.  However, in his request for discharge, dated 19 November 1971, he indicated 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, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.

2.  He contends he was too young and having family problems at the time of his discharge.  However, age is not a sufficiently mitigating factor.  Although he was 17 years of age when he enlisted in the RA, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.  In addition, there is no evidence he sought assistance from his chain of command or chaplain in resolving his family problems within established Army procedures.

3.  He wants his discharge upgraded so he can obtain VA medical benefits.  However, a discharge is not changed for the purpose of obtaining VA benefits.

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 
10, was administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

6.  His record of service included one special court-martial conviction, serious offenses for which a second special court-martial was recommended, and 
323 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  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)                                         AR20130008551





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130008551



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1