IN THE CASE OF:	

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000352 


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 an honorable discharge.

2.  He states he was told when he got out that his discharge would be upgraded to an honorable discharge after 2 years.  He did not know he had to do anything.  His records were lost when he first entered service, and he did not know what to do.  He is trying to get help at the Department of Veterans Affairs (VA).  

3.  He provides two letters of support and his DD Form 214 (Report of Separation from Active Duty).  

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 18 December 1972, the applicant enlisted in the Regular Army. 

3.  His DA Form 20 (Enlisted Qualification Record) shows he was:

* absent without leave (AWOL) from 6 April to 4 June 1973
* AWOL from 14 to 18 June 1973
* in confinement from 21 June to 19 July 1973

4.  His record shows that, on 24 July 1973, his request to be discharged for the good of the service was disapproved by the separation authority.  The record contains a statement that he submitted with his request.  He stated he wanted to leave the Army because he didn't think he could get used to the service and he needed to help his parents pay their bills.  

5.  His DA Form 20 further shows he was:

* AWOL from 6 August 1973 to 21 February 1974
* in confinement beginning on 28 February 1974

6.  On 20 March 1974, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an undesirable discharge, and of the rights available to him.  

7.  After consulting with counsel, the applicant 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 understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable 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 law
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  In a statement in his own behalf, he stated:

* he could not adjust to Army life
* he could not make any rank
* he had been AWOL three times and could not keep his same military occupational specialty
* he had too many problems on the outside
* he believed it would help him and the Army to get out
* he could not stand to be locked up and would be if he stayed in
* his mother and father could not work, he had to help them out, and he could not live on $300 a month
* he tried to make the Army work out, but it didn't 

6.  On 8 April 1974, the separation authority approved the applicant's request and directed that he receive an undesirable discharge.  On 18 April 1974, he was discharged in accordance with the separation authority's decision with his service characterized as under conditions other than honorable.  He completed 6 months and 11 days of total active service with 294 days of lost time.

7.  He provides two letters of support.

	a.  In a letter dated 23 December 2013, a former member of the U.S. Marine Corps states the applicant was in contact with him during his Army service.  He indicates the applicant told him that he was told at the time of his discharge that it would be upgraded to honorable within 2 years.  He asks that the applicant's records be reviewed to determine if an oversight has occurred.  

	b.  In a letter dated 16 December 2013, a pastor states the applicant was told his discharge would be upgraded to honorable within 2 years.  The applicant is a "repented man" and asks that his discharge be upgraded so the applicant and his family may lead a more comfortable life.

8.  There is no indication 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, 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 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 Army does not have nor has it ever had a policy to upgrade discharges based on the passage of time.  

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

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was AWOL for three periods, and his last period of AWOL lasted over 6 months.  Based on his period of AWOL, he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

4.  Based on his periods of AWOL, his service was unsatisfactory, and an under other than honorable conditions discharge was appropriate.
5.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20140000352



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ABCMR Record of Proceedings (cont)                                         AR20140000352



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