IN THE CASE OF:	  

		BOARD DATE:	  20 August 2014

		DOCKET NUMBER:  AR20130021885 


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 an honorable discharge.

2.  The applicant states his undesirable discharge was unfair because he was put in a situation when drafted where he needed to leave the service to help his immediate family.  He got married while at Fort Ord, CA.  His wife and child were not receiving allotments from his pay due to an error by the Army; the Army took money from him but did not disburse it.  He met with an Army chaplain and discussed a discharge under hardship conditions; however, no one helped him and he had no choice but to go see his family and bring them money and clothing.  Additionally, Army pay was not sufficient to provide for his wife, child, and two brothers.  He wants his discharge upgraded so he may receive medical benefits from the Department of Veterans Affairs (VA) and veterans' preference for employment purposes.

3.  The applicant provides 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 13 May 1971, he was inducted into the Army of the United States.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he held was private (PV2)/E-2.

3.  Summary Court-Martial Order Number 1242, issued by Headquarters and Headquarters Command, U.S. Army Training Center, Infantry, Fort Ord, CA on 27 December 1971, shows he was convicted by a summary court-martial on     21 December 1971 of being absent without leave (AWOL) from his unit during the periods:

* 12 through 13 October 1971
* 19 through 21 October 1971
* 24 October through 3 November 1971

4.  His DA Form 20 (Enlisted Qualification Record) shows the following periods of AWOL:  

* 12 through 13 October 1971
* 19 through 23 October 1971
* 24 through 25 October 1971
* 26 October through 3 November 1971
* 28 December 1971 through 13 February 1972
* 22 through 24 February 1972
* 25 February through 27 July 1972

5.  Court-martial charges were preferred against him, presumably for being AWOL from 25 February through 27 July 1972; however, the DD Form 458 (Charge Sheet) that documented the charges is not available for review.

6.  On 7 August 1972, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, of the elements of the offense(s) with which he was charged, possible defenses to the charged offense(s), his procedural rights, of the effects of a his request for discharge, and the rights available to him.  He waived his rights.  

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 (Personnel Separations - Enlisted Personnel).

	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 indicated a statement in his own behalf was submitted with his request.  In that statement he indicated:

* he had been working to help support his mother and two little brothers prior to his being drafted in May 1971
* his mother passed away from cancer and he went into the Army
* he went to Fort Ord for advanced individual training and got married in July 1971
* he then went to the Oakland Replacement Station where he went AWOL on 22 October 1971
* he was returned to Fort Ord, CA for a summary court-martial
* his wife had a baby on 1 February 1972 and he went AWOL on 22 February 1972 because he could not adjust to the military life
* when his mother passed away he was left with having to pay for her funeral-related bills and provide support for his wife, child, and brothers
* he had a job in Oregon where his uncle had a logging business
* for the good of the Army he would like to be discharged

8.  On 21 August 1972, the separation authority approved his request for discharge and directed that he be given an Undesirable Discharge Certificate.

9.  On 24 August 1972, he was discharged from active duty in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  The DD Form 214 he was issued at that time shows:
* he completed 7 months and 7 days of net creditable active military service, with 245 days of time lost under Title 10, U.S. Code, section 972
* he was discharged under the provisions of Army Regulation 635-200, chapter 10
* he was issued a separation program number of 246, denoting he was discharged for the good of the service
* he received an Undesirable Discharge Certificate

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
  
11.  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.  The applicant's contentions and explanation of the events that occurred at the time are noted; however, the evidence of record does not support his request for an upgrade of his undesirable discharge.

2.  He was convicted by a summary court-martial of being AWOL.  Later, he was AWOL for more than 5 months, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  It appears that court-martial charges were preferred against him; however, he elected to be discharged in lieu of trial by court-martial.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  

4.  His record shows he was well advised and fully aware of the consequences of his decisions.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

5.  He had 245 days of lost time prior to his normal expiration term of service date.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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

7.  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)                                         AR20130021885



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ABCMR Record of Proceedings (cont)                                         AR20130021885



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