IN THE CASE OF:	  

		BOARD DATE:	  8 July 2014

		DOCKET NUMBER:  AR20130019342 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* he had an honorable period of service
* he was found not honorable for Department of Veterans Affairs (VA) purposes and desperately needs help from the VA
* he has severe health issues

3.  In a VA Form 21-4138 (VA Statement in Support of Claim), dated 
16 September 2013, he states:

	a.  he reenlisted in Germany and found out his wife was pregnant by another man.  They separated and his wife received an allotment of his Army pay.

	b.  on 11 March 1971, he attempted to contact his post to resolve his personal issues, but was unsuccessful.  He departed the local area, went to Michigan to visit his parents, and then he went to Canada for employment.

	c.  eventually, he was under the impression the Army discharged him.  He relocated back to Michigan and soon after he was pulled over for speeding and the police discovered he was absent without leave (AWOL).  He was returned to military control and offered an opportunity to remain in the Army, but he chose to separate from the Army.
4.  The applicant provides:

* VA Form 21-4138
* Honorable Discharge Certificate, dated 3 June 1969
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 5 September 1968 for a period of 3 years.  He completed his training and was awarded military occupational specialty 63B (wheel vehicle mechanic).  On 3 June 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 4 June 1969 for a period of 4 years.

3.  He was reported as AWOL on 11 March 1971 and he was apprehended by civil authorities and returned to military control on 20 October 1971.

4.  Charges were preferred against the applicant for the AWOL period on 
27 October 1971.  Trial by special court-martial was recommended.

5.  On 8 November 1971 after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In his request, he indicated he understood he could be discharged under conditions under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he had approximately 31 months of good time in the military
* he followed all rules and regulations
* upon arriving at Fort Riley, KS, he was quickly disillusioned
* military factors were not the only reason he went AWOL
* it was a great shock to him when he found out his spouse gave birth to a child that was not his
* he was stationed in Germany at the time
* he is a Canadian citizen 

6.  On 18 November 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

7.  On 2 December 1971, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 2 years, 8 months, and 21 days of total active service with 223 days of time lost.

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

9.  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, the 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 
	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.  The applicant wants his discharge upgraded so he can obtain VA benefits.
However, the ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

3.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

4.  His prior Honorable Discharge Certificate was noted.  However, his record of service during his last enlistment included 223 days of time lost.  As a result, his record of service was not satisfactory.

5.  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)                                         AR20130019342





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ABCMR Record of Proceedings (cont)                                         AR20130019342



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