IN THE CASE OF:	  

		BOARD DATE:	  5 March 2014

		DOCKET NUMBER:  AR20130011952 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he agreed to resign from the Army when he was told his discharge would be changed to a general discharge after his release from active duty.  He goes on to state that he needs Department of Veterans Affairs medical benefits as he cannot afford medical care.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a 1994 newspaper article, and a letter of appreciation. 

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 on 17 March 1969.  He completed his one-station unit training as a light weapons infantryman at Fort Dix, New Jersey and was transferred to Germany on 24 October 1969.

3.  On 12 October 1970, charges were preferred against the applicant for assaulting another Soldier and inflicting grievous bodily harm.

4.  On 5 December 1970, after consulting with defense 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

5.  The appropriate authority (a major general) approved his request for discharge on 14 December 1970 and directed the issuance of an Undesirable Discharge Certificate.

6.  Accordingly, he was discharged under the provisions of Army Regulation 635-200, chapter 10, on 9 January 1971 in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year, 9 months, and 23 days of active service. 

7.  There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

	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 applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered; however, there has never been a provision for an automatic upgrade of such discharges and the Board does not upgrade discharges simply for the purpose of qualifying individuals for benefits.  His request for discharge did not indicate that his discharge would automatically be upgraded.  Additionally, his contentions are not sufficiently mitigating to warrant relief when compared to the serious nature of the charges against him and the lack of sufficient mitigating circumstances presented at the time, and his overall undistinguished record of service.  His service did not rise to the level of an honorable or a general discharge.  Accordingly, there appears to be no valid basis to approve his request for 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)                                         AR20130011952





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ABCMR Record of Proceedings (cont)                                         AR20130011952



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