BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140002449 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he was released from the service with the "benefits of an honorable discharge" but he cannot get all benefits because his discharge does not state "Honorable."  He further states that he never attempted to use benefits until now and did not need to have his discharge upgraded. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 19 February 1971, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he held was private two/pay grade E-2.

3.  His DA Form 20 (Enlisted Qualification Record) shows the following periods of absence without leave (AWOL) and confinement:  

* 20 July-9 September 1971
* 27 September 1971
* 28-30 September 1971 (confinement)
* 3 November 1971-23 January 1972
* 24 January-2 February 1972
* 3 February-30 July 1972

4.  His complete discharge packet is not available for review.  However, his record does show his commander recommended approval of the applicant's request for discharge.  His commander stated the applicant had demonstrated that he was unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  He stated he had interviewed the applicant and in view of the applicant's statements, demeanor and attitude, he believed it would be in the best interest of the service to discharge the applicant.  He stated the applicant was pending trial for AWOL on one occasion totaling 179 days.  The applicant also had four periods of AWOL totaling 145 days and had been given nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL for 52 days.

5.  On 23 August 1972, the separation authority approved his request for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service- in lieu of trial by court-martial.

6.  On 28 August 1972, he was discharged from active duty in accordance with the separation authority's decision with his service characterized as under other than honorable conditions.  The DD Form 214 he was issued at that time shows:

* he completed 7 months and 18 days of net creditable active military service, with 327 days of time lost under Title 10, U.S. Code, section 972
* he was discharged under the provisions of Army Regulation 635-200
* he was issued a separation program number of 246, denoting he was discharged for the good of the service in lieu o trial by court-martial
* he received an Undesirable Discharge Certificate

7.  He provided a DD Form 214 with the entry "BFTS OF HON DISCH" highlighted in item 25 (Education and Training Completed).

8.  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.

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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  The applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  An Undesirable Discharge Certificate would normally be furnished to 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.  It appears the applicant contends he was discharged from the military with the benefits of an honorable discharge based on the entry "BFTS OF HON DISCH" in item 25 of his DD Form 214 and that his DD Form 214 should therefore reflect an honorable discharge.  However, this entry only shows that he completed training on the benefits of an honorable discharge.

2.  The record shows he was AWOL on four occasions.  Later, he was AWOL for a period of more than 5 months, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  He had 327 total days of time lost.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

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

5.  In view of the foregoing, there is no basis for upgrading his discharge to 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)                                         AR20140002449



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ABCMR Record of Proceedings (cont)                                         AR20140002449



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