IN THE CASE OF

		BOARD DATE:	    30 July 2014

		DOCKET NUMBER:  AR20130021904 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he missed 33 days of service and he asked to be discharged.  He did not realize his mistake nor was he informed.  He requests that his discharge be upgrade in order to apply for truck driving [training] under "Hazelwood."

3.  The applicant provides no additional evidence.

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 16 March 1977.
3.  He was absent without leave (AWOL) during the period 4-7 March 1978.

4.  He accepted nonjudicial punishment (NJP) on:

   a. 13 June 1978 for two specifications of failing to go at the time prescribed to his appointed place of duty and for sleeping while on guard duty; and
   
   b. on 14 August 1978 for failing to go to his appointed place of duty at the time prescribed.

5.  He departed AWOL on 4 December 1978 and remained AWOL until 
2 January 1979.

6.  On 3 January 1979, court-martial charges were preferred against him for eight specifications of failing to go at the time prescribed to his appointed place of duty, for being AWOL during the period 2-3 October 1978, and for being AWOL from 
4 December 1978 to 2 January 1979.

7.  On 10 January 1979, he consulted with legal counsel and 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 due to charges being preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged in his request for discharge that he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledge he had been advised of the implications that were attached to it and that by submitting the request for discharge, he was admitting guilt of the charge (s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood he could be issued an under other than honorable conditions discharge and he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

9.  On 24 January 1979, the separation authority approved his request for discharge and directed the issuance of an Under Other than Honorable Conditions Discharge Certificate.  On 26 January 1979, he was discharged accordingly.  He completed 1 year, 9 months, and 9 days of active duty service and he accrued 33 days of time lost.

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 26 October 1982.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  The regulation provides in:

	a.  Chapter 10 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.  A discharge under other than honorable conditions is normally issued to an individual who is 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 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.

12.  A search of the internet revealed that the Hazelwood Act is a State of Texas tuition exemption created to provide education benefits to honorably discharged or separated Texas veterans and to eligible dependent children and spouses of Texas veterans.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge in order to become eligible for State veterans benefits has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for Federal and/or State veteran's benefits.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations. There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP and court-martial charges for several specifications of failing to go to his appointed place of duty, AWOL on two occasions, and 33 days of time lost   Based on his record of indiscipline, his overall record of service does not support an upgrade of his discharge.

5.  Based on the foregoing, there is no basis to grant 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 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)                                         AR20130021904



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ABCMR Record of Proceedings (cont)                                         AR20130021904



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