IN THE CASE OF:	  

		BOARD DATE:	  19 June 2014

		DOCKET NUMBER:  AR20130017102 


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.  The applicant states when he entered the Army he was young and immature with a tough childhood.  He has since become a better person.  He has worked hard all of his life and supported his family.  He asks that his discharge be upgraded to honorable so his family can be proud of him and to be eligible for Department of Veterans Affairs (VA) benefits. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and three letters of support.

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.  On 26 April 1971, at age 18, the applicant enlisted in the Regular Army.  

3.  On 1 June 1971, his company commander imposed nonjudicial punishment (NJP) against him under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 29 May 1971 to 1 June 1971.

4.  On 17 June 1971, his commander imposed NJP against him under Article 15, UCMJ, for being AWOL from 4 to 11 June 1971 and for taking an overdose of Valium tablets incapacitating him to properly perform his required duties.

5.  Two DD Forms 458 (Charge Sheet), dated 24 October 1971, show he was charged with being AWOL from 18 August 1971 to 5 October 1971 and from 
5 to 23 October 1971.

6.  On 26 October 1971, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial under circumstances which could have led to a bad conduct or dishonorable discharge, of the effects of requesting discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), and of the rights available to him.

7.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.

	a.  He acknowledged that:

* he had not been subjected to coercion with respect to his request for discharge
* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  He elected not to submit a statement in his own behalf.

8.  On 1 December 1971, his commander imposed NJP against him under Article 15, UCMJ, for being AWOL from 18 November 1971 to 28 November 1971.

9.  On 23 December 1971, the separation authority approved the applicant's request and directed that he be given an undesirable discharge.

10.  On 7 January 1972, he was discharged in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  He completed 4 months and 20 days of net service this period with 114 days of lost time.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  He provides three letters of support attesting to his being a good husband and father.

13.  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 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.  His age at the time of his enlistment was noted.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

2.  His contentions and letters of support were carefully considered.  However, the available evidence does not support upgrade of his undesirable discharge.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he received NJP for multiple occasions of being AWOL and he was charged with being AWOL for two periods, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

4.  Due to his multiple and lengthy periods of AWOL, his conduct and performance were not satisfactory.

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

6.  In view of the foregoing, there is no basis for granting the applicant a general discharge 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)                                         AR20130017102



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ABCMR Record of Proceedings (cont)                                         AR20130017102



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