IN THE CASE OF:	  

		BOARD DATE:	 25 March 2014 

		DOCKET NUMBER:  AR20130012484 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states he needs his discharge upgraded so he can receive needed medical benefits.  He did not want to go to jail and decided to leave the military; this decision got him an under other than honorable conditions discharge.  His transportation left him stranded.  His discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse actions.  He has never been in trouble with the law.

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 enlisted in the Regular Army on 1 March 1973 and he held military occupational specialty 76Y (Unit Supply Specialist and Armorer).  On 17 August 1973, he was assigned to the 1st Battalion, 2nd Infantry Regiment, Fort Riley, KS.

3.  He was reported as absent without leave (AWOL) from his assigned unit on 2 January 1974.  He was returned to his assigned unit on 3 January 1974.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 11 January 1974 for being AWOL from 2 to 3 January 1974
* on 15 January 1974 for one specification each of failing to obey a lawful regulation by leaving the arms room unsecure and for disobeying a lawful order 

5.  On 3 May 1974, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls as a deserter.  He was returned to his assigned unit on 8 October 1974.

6.  On 7 November 1974, court-martial charges were preferred against him for one specification of being AWOL from 3 May to 8 October 1974.

7.  On 9 December 1974, he 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 or 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 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 

9.  With his request, he submitted a statement on his own behalf wherein he stated he wanted a chapter 10 discharge because he believed efforts to retrain him would be a waste of time.  He knew the Army was a good place for some people but he couldn't adapt to the Army way of life and wanted to go back home and make a better life for himself.

10.  On 16 December 1974, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls as a deserter.  He was returned to his assigned unit on 21 December 1974.

11.  On 24 December 1974, additional court-martial charges were preferred against him for one specification of being AWOL from 16 to 21 December 1974.

12.  His immediate commander subsequently recommended approval of his request for a discharge.  The commander stated the applicant's conduct had been far below accepted standards.  In addition, he was unwilling to continue his military service, wanted out [of the Army] at any cost, and he should be discharged with the issuance of an Undesirable Discharge Certificate.

13.  His intermediate and senior commanders subsequently recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.  

14.  On 22 January 1975, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 5 February 1975, he was discharged accordingly. 

15.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 by reason of for the good of the service - in lieu of court-martial (separation program designator KFS) with an under other than honorable conditions characterization of service.  He completed 1 year, 5 months, and 21 days of net active service and had 164 days (5 months and 14 days) of lost time due to being AWOL.

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

17.  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 included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

18.  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.

19.  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 evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for medical or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  His record of service shows he received NJP on two occasions for being AWOL, failing to follow a lawful regulation, and disobeying a lawful order.  He subsequently went AWOL on two more occasions.  At the time of his discharge, he had over 5 months of lost time for being AWOL.  

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130012484





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ABCMR Record of Proceedings (cont)                                         AR20130012484



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