BOARD DATE:	 23 September 2014 

		DOCKET NUMBER:  AR20140002401 


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, in effect:

* on 11 February 1973, he received a general, under honorable conditions discharge from the Army National Guard
* in 1973, he had a mental problem and was not advised of his rights to see mental health personnel 
* he informed his company commander that he had a problem being around people but all he did was smile, so he left and went home
* he was told that by signing the chapter 10 discharge he would have the rights to the benefits of a honorable discharge
* he would like proof that he attended a Benefits of an Honorable Discharge class

3.  The applicant provides his:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* General Discharge certificate




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 record shows he enlisted in Michigan Army National Guard (MIARNG) on 21 January 1972.  On 11 February 1973, he was discharged from the MIARNG with a general discharge, under honorable conditions.  

3.  On 12 February 1973, he was transferred to the U.S. Army Reserve and on the same date, was involuntarily ordered to active duty.  

4.  The applicant's record contains a DD Form 458 (Charge Sheet) which shows court-martial charges were preferred against him on 1 November 1973 for one specification of being absent without leave (AWOL) from 26 February to 
23 October 1973.

5.  On 7 November 1973, the applicant 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, the applicant 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.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He signed a Benefits Lost Because of an Undesirable Discharge statement, wherein he stated that he understood the difference between the benefits of an honorable and an undesirable discharge as attested to by his written signature.  This statement was accompanied by a detailed list of specific benefits impacted by a less than honorable discharge.

6.  The applicant also submitted a statement in his own behalf wherein he also indicated that he needed to be at home because his wife was ill, she and their children were homeless, and she needed him home to help her.  He indicated that he had other financial obligations and the Army did not pay him enough.  He indicated that the reason he went AWOL was because he did not like being away from his family.

7.  The applicant's unit commander and subsequent commanders recommended approval with the issuance of an Undesirable Discharge Certificate.

8.  On 19 November 1973, the separation authority approved the applicant's 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.
   
9.  On 21 November 1973, he was discharged as a Reservist of the Army under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, with an under conditions other than honorable discharge after serving 
1 month and 13 days of active service and he had 239 days of lost time.  The 
DD Form 214 he was issued also shows in item 25 (Education and Training Completed) the entry UCMJ and BFTS OF HON DISCH (Benefits of Honorable Discharge).

10.  On 13 August 1980, the Army Discharge Review Board disapproved the applicant's request for an upgrade of his discharge.

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.  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.  There is no evidence of record nor did the applicant submit any evidence that shows he informed or sought help from his chain of command or the mental health community for his mental health or his family problems.

3.  His record shows he had one court-martial charge and 239 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.

4.  Item 25 of the applicant's DD Form 214 shows he completed the BFTS OF HON DISCH class.  Evidence of record also shows he read and signed the Benefits Lost Because of an Undesirable Discharge statement.  A copy of this statement will be provided to him.

5.  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)                                         AR20140002401





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ABCMR Record of Proceedings (cont)                                         AR20140002401



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