BOARD DATE:	  6 May 2014

		DOCKET NUMBER:  AR20130015604 


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.  He states his discharge was an injustice due to his state of mind.  He was insane due to lies and deception on behalf of military personnel.  

3.  He provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), a self-authored statement, and a letter from his spouse.

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 24 July 1974.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for failing to go at the time prescribed to his appointed place of duty on 14 June 1975, 27 May 1976, 2 June 1976 and for being absent from his place of duty from 20 to 21 July 1976.

4.  His discharge packet is not available for review.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under conditions other than honorable on 7 January 1977  under the provisions of Army Regulation 635-200, (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial court-martial with issuance of an Undesirable Discharge Certificate.  He completed 2 years,
2 months, and 19 days of total active service.  His DD Form 214 also shows a period of time lost from 18 August to 10 November 1976 for a total of 85 days.  

5.  He provided a self-authored statement in which he attested:

	a.  he requests an upgrade because he needs health benefits.  He was denied benefits because of youthful infractions.

	b.  he submitted requests to transfer to the Special Forces with letters of acceptance, but he was denied by a sergeant first class (SFC).  

	c.  he was sent to Yakima, WA Training/Firing Center to meet with his battalion and company commanders regarding his request to be transferred to the Special Forces.

	d.  he was told that it would be a long time before he could see his commanding officers and he was warned not to be absent without leave (AWOL).

	e.  he departed Yakima, WA and walked through the desert.  He eventually made his way back to Tacoma, WA.  

   f.  he was trying to follow the proper procedures for transferring to the Special Forces, but he was threatened, lied to, mistreated, and they did not cooperate with him.  He would have reenlisted if they (military personnel) would have treated him.  

6.  He also provided a statement from his wife who attested:

	a.  she and the applicant were married outside the perimeters of McChord Air Force Base.

	b.  she would like the applicant's discharge reviewed because she feels it was an injustice due to his state of mind.

	c.  she accompanied the applicant to see an SFC to request a transfer to the Special Forces on two occasions.  She feels the applicant was mistreated, lied to, and disrespected on both occasions.  She claimed she was also threatened.

	d.  she repeated the SFC's derogatory comments to the applicant on two occasions.  The applicant went back to the SFC a third time alone to be transferred to the Special Forces, but he was denied.

	e.  she restated the applicant's incidents in Yakima, WA.

	f.  the applicant was AWOL a couple of months, but she doesn't know the exact dates.  She claimed the applicant was in their apartment the entire time until the Military Police apprehended him.

	g.  the applicant was locked up, she called the Fort Lewis, WA operator to inquire about him, and she left a recorded message for a general officer.  The applicant showed up at their apartment a day or so later and said he was discharged.

	h.  she and the applicant moved back to St. Louis, MO because they had no income or housing allotments and were being evicted at that time.  The applicant didn't receive his discharge records until she wrote to the National Personnel Records Center, St. Louis, MO.  However, the applicant only received his 
DD Form 214.  

7.  There is no evidence the applicant petitioned 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.

	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, type of discharge normally given under the provisions of this chapter, the loss of VA 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.

	b.  Paragraph 3-7a states 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 states 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 his discharge was an injustice due to his state of mind.  He also claims he was insane due to lies and deception on behalf of military personnel.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) that appears to have led to his discharge.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  He states he needs his discharge upgraded to obtain healthcare.  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.  

4.  The applicant's statements from his wife are acknowledged; however, these statements alone are not sufficiently mitigating to warrant an upgrade in this case.

5.  His service record shows he received three Article 15s and he accrued 83 days of time lost.  Based on this 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.

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 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)                                         AR20130015604



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ABCMR Record of Proceedings (cont)                                         AR20130015604



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