IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130009124 


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.  He states:

* he believes the discharge was unjustified
* he agreed to the discharge because he was told he would be let out early if he did not question the discharge
* he needs an honorable discharge to be eligible for benefits

3.  He 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 August 1971.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for the following offenses:

* failing to go at the time prescribed to his appointed place of duty (three specifications)
* being absent from his place of duty from 1230 hours to 1700 hours on 16 October 1972
* disobeying a lawful order from a noncommissioned officer (NCO)
* being absent without leave (AWOL) from 13 to 28 February 1973

4.  On 24 April 1973, he was convicted by a summary court-martial of being AWOL from 23 March to 7 April 1973.  He was sentenced to a forfeiture of $200.00 pay for 1 month, reduction to the rank of private/E-1, and to perform hard labor without confinement for 10 days.  

5.  On 9 October 1973, charges were preferred against him for being disrespectful toward a commissioned officer and for disobeying a lawful order from an NCO.

6.  He consulted with legal counsel and 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 – Enlisted Personnel), chapter 10.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge were issued.  He submitted statements in his own behalf.  He stated he couldn't adjust to military life and he would like to be discharged from the service.  

7.  On 26 October 1973, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 with an undesirable discharge and directed the applicant be reduced to the lowest enlisted grade prior to discharge.

8.  On 30 October 1973, he was discharged after completing 2 years, 0 months, and 6 days of creditable active service with 66 days of lost time.

9.  His service record doesn't indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 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 an individual who was discharged for the good of the Service.  

11.  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.

12.  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 record shows he was charged with the commission of the offenses of being disrespectful toward a commissioned officer and for disobeying a lawful order from an NCO.  These offenses are punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army 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.  

2.  His service record shows he received two Article 15s, one conviction by a summary court-martial, and a record of 66 days of lost time.  

3.  His service record is void of evidence which supports his contentions regarding he was told he would be let out early if he did not question the discharge.

4.  He contends he needs an honorable discharge to be eligible for benefits.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20130009124



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ABCMR Record of Proceedings (cont)                                         AR20130009124



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