IN THE CASE OF: 

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017418 


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, in effect, that his undesirable discharge be upgraded to a general discharge.

2.  He states he was an exemplary troop and he was promoted to pay grade E-5 in 13 months.  It was documented that he went absent without leave (AWOL) on several occasions, but each of his absences can be explained.  His AWOLs during January, June, and July were due to transportation problems when he tried to return to Fort Jackson, SC from home.  He maintains that in all cases he contacted the post and was told it was not a problem.  His AWOLs between December 1971 and January 1972 were excused absences so he could visit his new-born daughter who was diagnosed with a life-threatening heart condition.  He was the sole caregiver for his daughter during her open heart surgery and subsequent hospitalization.  His offense of being caught in an off-limits area was due to the trolley driver making a wrong turn.  He was completely unaware of his infractions until he received a letter from the Department of Veterans Affairs (VA) denying his claim for compensation due to all of his infractions.

3.  He provides:

* Self-authored statement 
* Daughter's clinical records
* VA letter, dated 11 September 2013



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 31 January 1968.  He served in the Republic of Vietnam from 2 August 1968 to 31 July 1969. He served 2 years on active service and was honorably discharged on
30 January 1970 for immediate reenlistment.

3.  On 31 January 1970, he enlisted in the Regular Army.

4.  On 14 July 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on 23 June and 2 July 1971.  He signed the DA Form 2627-1 acknowledging receipt of the Article 15.  He also initialed the form indicating that he did not demand trial by court-martial and matters in extenuation, mitigation, or defense were not submitted.

5.  Summary Court-Martial Order Number 34, dated 14 December 1971, shows he was found guilty of being AWOL from 2 November to 8 December 1971.  He was sentenced to a forfeiture of $200.00 pay and reduction from grade E-5 to E-4 The sentence was adjudged on 14 December 1971.

6.  On 27 January 1972, charges were preferred against the applicant for being AWOL from 27 December 1971 to 6 January 1972 and 17 to 26 January 1972.

7.  On 31 January 1972, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

8.  He signed his request for discharge which showed he was making the request under his own free will, he was afforded the opportunity to speak with counsel, he 
acknowledged he understood he might be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all VA benefits, and he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

9.  On 9 February 1972, the appropriate authority approved his request and directed the issuance of an Undesirable Discharge Certificate.

10.  On 11 February 1972, he was discharged accordingly.  His DD Form 214 shows he received an Undesirable Discharge Certificate.  It also shows he completed 4 years and 11 days of total active service with 59 days of lost time. 

11.  His record is void of any evidence that shows he applied for emergency leave and/or a hardship discharge.

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

13.  The applicant provided his daughter's clinical records that show on
6 December 1971, at the age of 3 months, after being admitted to Womack Army Hospital Specialized Treatment Center, Fort Bragg, NC for congenital heart disease, she was transferred to the University of North Carolina at Chapel Hill.  It was noted that the applicant's daughter had no major illnesses prior to admission. 

14.  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 3-7b 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.  

15.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, “Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military…service when the following conditions are met:…(2)  The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because he was unaware of the infractions which were based on his daughter's medical condition.  The evidence of record shows he received an NJP that he signed and/or initialed acknowledging receipt and indicating that he did not demand trial by court-martial and matters in extenuation, mitigation, or defense were not submitted.

2.  Further, it is noted that although the medical evidence verifies that his daughter was diagnosed with congenital heart disease, there is no evidence and he did not provide any to show he sought counseling, emergency leave and/or that he requested a hardship discharge to resolve his situation prior to going AWOL.  Therefore, the applicant's contention that his situation led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  The evidence of record shows he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.  The evidence of record confirms that all requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.  

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  Since the applicant would have been eligible for an honorable discharge on 
30 January 1970 (and in fact was honorably discharged that date), it appears that the VA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans’ benefits does not fall within the purview of the Army; however, he should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

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)                                         AR20130017418



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130017418



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1