IN THE CASE OF:	  

		BOARD DATE:	  7 August 2014

		DOCKET NUMBER:  AR20130021962 


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 a general under honorable conditions discharge or honorable discharge.

2.  The applicant states, in effect, the law now requires him to have health insurance even if he does not intend on ever using it.  He had to retire early at age 62 and this year his social security totaled $2,820.  He has been out of work since 2005, and he lost his home and 10 acres of property due to back taxes.  If he were to receive Department of Veterans Affairs (VA) benefits (which he does not intend on using), by law he would have medical coverage and he would not be required to carry health insurance he does not want.     

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from the Social Security Administration
* DD Form 2A (Armed Forces of the United States Identification Card)
* MEDICARE Health Insurance Card

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 was inducted into the Army of the United States on 29 April 1968.

3.  On 28 July 1981, court-martial charges were preferred against the applicant for one specification of absenting himself from his organization (the U.S. Army Overseas Replacement Station), located in Oakland, CA, from 13 March 1969 to 27 July 1981.

4.  On 29 July 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he 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 – Enlisted Personnel), chapter 10.  

5.  In his request for discharge, he acknowledged he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He understood by requesting a discharge he was admitting guilt to the charges against him or of lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He acknowledged he understood if his discharge request were approved, he may be deprived of many or all Army benefits.  He acknowledged he may be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He stated that under no circumstances did he desire further rehabilitation or to perform further military service.  The applicant provided a statement claiming he felt he was unsuited for military service based on his personal and moral beliefs.

6.  On 17 August 1981, his immediate and intermediate commanders recommended approval of his request with the issuance of a discharge under other than honorable conditions.

7.  On 9 October 1981, the separation authority approved the applicant's 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, with a discharge under other than honorable conditions and reduction to the lowest enlisted grade. 
On 23 November 1981, he was discharged accordingly.

8.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  He completed 1 year, 2 months, and 11 days of creditable active service and he had lost time from 13 March 1969 to 28 April 1970 with time lost after his normal expiration term of service from 29 April 1970 to 26 July 1981.

9.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.  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 states 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 contention that his under other than honorable discharge should be upgraded to a general discharge was carefully considered and determined to lack merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was absent from his organization from 13 March 1969 to 27 July 1981.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.

5.  Notwithstanding the statements provided by the applicant, the ABCMR does not grant requests for discharge upgrades solely for the purpose of making former service member's eligible for veterans' benefits.

6.  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)                                         AR20130021962



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ABCMR Record of Proceedings (cont)                                         AR20130021962



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