IN THE CASE OF:	  

		BOARD DATE:	  9 January 2014

		DOCKET NUMBER:  AR20130008922 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states:

* his service was fine up to the point where his wife was near death and lost his child
* he was absent without leave (AWOL) for 3 months to be with her
* he is currently homeless and seeking Department of Veterans Affairs (VA) benefits

3.  The applicant does not provide any 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.  The applicant was inducted into the Army of the United States on 17 April 1972.  He completed training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  On 24 October 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL on or about 15 September 1972 until on or about 30 September 1972.

4.  A DA Form 188 (Extract Copy of Morning Report), dated 9 November 1972, shows the applicant was placed in an AWOL status on 31 October 1972.

5.  A DA Form 19-32 (Military Police Report), dated 21 April 1973, shows the applicant was apprehended by civil authorities and returned to military control on the same date.

6.  On 27 April 1973, AWOL charges were preferred against the applicant for the period on or about 31 October 1972 to on or about 21 April 1973.

7.  On 2 May 1973, the applicant 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 discharge or a 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request for discharge, the applicant acknowledged:

* he had not been subjected to any coercion
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit statements on his own behalf

8.  On 11 May 1973, the separation authority approved his request for discharge, directed that he be issued an Undesirable Discharge Certificate, and directed that he be reduced to private/E-1.  On 17 May 1973, the applicant was discharged as directed.

9.  On 27 September 1988, the applicant was notified of the Army Discharge Review Board's denial of his request for an upgrade of his discharge.

10.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  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.

	b.  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 does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Upon preferring of court-martial charges against him, he consulted with counsel.  His options were to face trial by court-martial that could have adjudged a dishonorable or a 




bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose discharge.  All requirements of law and regulation were met, and his rights were fully protected throughout his discharge processing.

3.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

4.  In the absence of evidence showing the characterization of his service was inequitable or unjust there is no basis for upgrading his discharge to an honorable or general under honorable conditions 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)                                         AR20130008922



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ABCMR Record of Proceedings (cont)                                         AR20130008922



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