BOARD DATE:	  22 July 2014

		DOCKET NUMBER:  AR20130019069 


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 an honorable discharge.

2.  The applicant states the reason he was absent without leave (AWOL) was related to a medical matter that had to be resolved in order for him to return to his unit.  He returned to his unit on his own volition without coercion from the military.  
He adds that it is necessary that his discharge be upgraded to honorable in order for him to be eligible to obtain full veterans' benefits.

3.  The applicant provides no documentary evidence in support of his application.

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 3 October 1974 for a period of 3 years.  He was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  He accepted nonjudicial punishment (NJP) on two occasions for AWOL -

* from 13 October 1976 to 2 November 1976
* from 18 January 1977 to 24 January 1977

4.  The applicant went AWOL on 7 March 1977 and he surrendered to military authorities on 19 April 1977.

5.  A review of his military personnel records failed to reveal a copy of the court-martial charges preferred against the applicant.

6.  On 20 April 1977, the applicant consulted with legal counsel.  He was informed of the charges against him for violations of the Uniform Code of Military Justice and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might be discharged under conditions other than honorable, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), 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 if he were given a undesirable discharge (under other than honorable conditions).

	c.  He was also advised that he could submit any statements he desired in his own behalf.  He elected not to submit statements in his own behalf.

	d.  The applicant and his counsel placed their signatures on the document.

7.  The applicant's immediate and intermediate commanders recommended approval of his request and issuance of an Other Than Honorable Discharge.
8.  The separation authority approved the applicant's request for discharge and directed characterization of his service as under other than honorable conditions.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged, on 16 June 1977, under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions characterization of service.

	a.  He completed 2 years, 6 months, and 7 days of net active service during this period.

	b.  Item 21 (Time Lost) shows he had 113 days of lost time.

10.  On 11 March 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 contends that his under other than honorable conditions discharge should be upgraded because he went AWOL due to a medical matter that had to be resolved and then he voluntarily returned to military service.

2.  Records show the applicant was AWOL for a period of 43 days when he surrendered to military authorities.

   a.  There are no medical records or other evidence of record (other than the applicant's contention in his application to this Board) of a medical condition or matter that had to be resolved before he could return to his unit.

    	(1)  If the applicant was encountering such a medical emergency, the correct course of action would have been for him to address the matter through his chain of command or through military medical channels.  There is no evidence of record that shows the applicant did so and he provides no documentary evidence that supports his contention.

    	(2)  In any case, the applicant voluntarily submitted a request for discharge in lieu of being court-martialed.  Moreover, he acknowledged that he was guilty.

   b.  Thus, the fact that the applicant surrendered to military authorities is not a mitigating factor with respect to his AWOL. 

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Considering all the facts of the case, the reason for his separation and characterization of his service were appropriate and equitable.

4.  During the period of service under review, the applicant received NJP on at least two occasions, he had 113 days of time lost, and he failed to complete his 3-year enlistment obligation.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

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)                                         AR20130019069



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ABCMR Record of Proceedings (cont)                                         AR20130019069



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