IN THE CASE OF:	  

		BOARD DATE:	  26 June 2014

		DOCKET NUMBER:  AR20130019496 


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 (UD) to general, under honorable conditions.

2.  The applicant states he is requesting this discharge upgrade only for the purpose of obtaining Department of Veterans Affairs (VA) medical attention.  He further states that he was absent without leave (AWOL) in 1973.

3.  The applicant provides a copy of his 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.  On 15 September 1971, the applicant enlisted in the Regular Army.  He completed the training requirements and he was awarded military occupational specialty 13A (Field Artillery).

3.  On 22 September 1972, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order to remain in the 175 millimeter Howitzer Section and perform housekeeping and sanitation duties.

4.  On 4 October 1973, charges were preferred under the UCMJ for violation of Article 86 (AWOL), two specifications, from on or about 10 November 1972 to 
20 February 1973 and from on or about 12 March to 28 September 1973.

5.  On 10 October 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UD which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.

7.  On 30 October 1973, the separation authority approved the applicant's request and directed the issuance of a UD.  On 5 November 1973, the applicant was discharged accordingly.  He completed a total of 1 year, 3 months, and
25 days of creditable active duty service and he had accrued 302 days of lost time.

8.  On 9 July 1981, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for being AWOL more than 30 days is a dishonorable discharge and confinement for 1 year.

10.  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 at any time after the charges have been preferred.  A discharge under conditions other than honorable is normally considered appropriate.  At the time, a UD was normally issued.

	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.  The applicant contends that his UD should be upgraded to a general discharge so that he can receive VA medical attention.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  His misconduct and lengthy periods of lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's desire to obtain VA medical benefits is not a valid basis for upgrading his discharge.

5.  In view of the foregoing, the applicant's request should be denied.



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)                                         AR20130019496



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ABCMR Record of Proceedings (cont)                                         AR20130019496



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