IN THE CASE OF:	  

		BOARD DATE:  6 February 2014

		DOCKET NUMBER:  AR20130009226 


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 enlisted in the Army in 1970 and completed a 3-year term
* he reenlisted for another 3 years and came home on leave to find his wife living with another man
* he was then absent without leave (AWOL) and did not return
* he lost his honorable discharge due to marital complications
* he wants his discharge upgraded so he can receive his veterans' benefits

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.  The applicant was inducted into the Army of the United States on 11 March 1970.  He completed training and was awarded military occupational specialty 94B (cook).  He arrived in Korea on 2 August 1970.  He attained the rank of specialist four on 30 December 1970.  He was honorably discharged on 22 March 1971 for immediate enlistment in the Regular Army.  He completed 1 year and 11 days of active service during this period.

3.  He enlisted in the Regular Army on 23 March 1971 for a period of 6 years.  He departed Korea in August 1971.

4.  He was reported as AWOL on 2 November 1971 and he returned to military control on 2 February 1972.

5.  Charges were preferred against the applicant for the AWOL period on 15 February 1972.  Trial by special court-martial was recommended.

6.  On 6 April 1972 after consulting with counsel, the applicant submitted a request for 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 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 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 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 AWOL due to many family problems
* he could not financially support his wife and twin daughters
* he was also experiencing marital difficulties
* he believed the Army would be better off without him because he might be forced to leave Fort Knox again if his problems continued

7.  On 8 May 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  On 19 May 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 1 year, 10 months, and 28 days of total active service with 94 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, 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 he was AWOL due to marital problems.  However, there is no evidence he sought assistance from his chain of command or chaplain in resolving his marital problems within established Army procedures prior to being AWOL.

2.  He wants his discharge upgraded so he can obtain veterans' benefits.  However, a discharge is not changed solely for the purpose of qualifying an applicant for veterans' benefits.

3.  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.

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

5.  His record of service during his enlistment included 94 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.

6.  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 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)                                         AR20130009226



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ABCMR Record of Proceedings (cont)                                         AR20130009226



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