IN THE CASE OF:	  

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140002324 


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 discharge to a general discharge, under honorable conditions.

2.  The applicant states:

* he requested a Chapter 10 discharge in an honorable manner so as not to endanger his fellow Soldiers in combat conditions 
* he requested the discharge due to the night terrors he got during combat training in preparation for Vietnam
* he was taught that after he shot the enemy to use additional means to ensure their death
* he could not get those images out of his mind and to this day, still fights them in his sleep
* he drinks to try and stop the nightmares and keeps going to prison because of that
* he can't afford the co-pays in prison or the cost of receiving and sending medical records from prison
* if he can have his discharge upgraded he may be able to see a doctor at the Department of Veterans Affairs (VA) hospital

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a self-authored statement.



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's military service records show he enlisted in the Regular Army on 4 November 1971.  

3.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned to the 502d Administration Company with duty at Troop 2, 2nd Squadron, 1st Cavalry Regiment, 2d Armored Division, Fort Hood, TX, for the purpose of completing advanced individual training and on-the-job training. 

4.  On 4 May 1972, court-martial charges were preferred against him for five specifications of being absent without leave (AWOL) from 4 to 10 April 1972,    17 to 18 April 1972, 19 to 26 April 1972, 29 April to 1 May 1972, and 1 to 2 May 1972.

5.  On 18 May 1972, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for 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.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not submit a statement on his behalf.

6.  His unit commander and subsequent commanders recommended approval with the issuance of an Undesirable Discharge Certificate.
7.  On 30 May 1972, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed the applicant be reduced to the lowest enlisted grade and that he be issued an undesirable discharge.
   
8.  On 14 June 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an undesirable discharge after serving 6 months and 25 days of active service and 22 days of lost time.  

9.  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.

10.  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.  At the time an undesirable discharge would normally be given to an individual who was discharged for the good of the Service.

	b.  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 evidence shows the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he understood he could be ineligible for many or all Army benefits and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication his request was made under coercion or duress.

2.  His record shows that court-martial charges were preferred against him and he accrued 22 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

3.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20140002324





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ABCMR Record of Proceedings (cont)                                         AR20140002324



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