BOARD DATE:	  21 October 2014

		DOCKET NUMBER:  AR20140004002 


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.

2.  The applicant states he was in an absent without leave (AWOL) status.  He was offered an under honorable conditions (general) character of service in exchange for his voluntary return.  The under other than honorable conditions character of service he received upon his voluntary return violated a verbal agreement.  Additionally, the letter and spirit of Title 38, Code of Federal Regulation (CFR), paragraph 3.12(6)(ii) was not followed in his discharge.  As a result of this injustice, he has been denied any possibility of veteran benefits.

3.  The applicant provides statement in support of claims.

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 enlisted in the Arkansas Army National Guard (ARARNG) on 
8 November 1974.

3.  His DA Form 20 (Enlisted Qualification Record) and DA Form 2-1 (Personnel Qualification Record-Part II) show:

	a.  He entered active duty on 19 November 1974, for the purpose of completing his initial entry training, and was assigned to Company A, 3rd Battalion, Basic Combat Training (BCT) Brigade, U.S. Army Training Center, Fort Leonard Wood, MO.

	b.  He was AWOL from 6 January 1975 to 20 January 1975 (15 days).

4.  His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) that shows he accepted non-judicial punishment (NJP) on 22 January 1975, for being AWOL from his unit during BCT, from on or around 6 January 1975 to on or around 21 January 1975.  

5.  His DA Forms 20 and 2-1 show he was in an AWOL status from 18 March 1975 to 18 June 1975 (93 days).  On 19 June 1975, although he was still AWOL, he was removed from his ARNG status and ordered to active duty.  During his period of lost time from 20 June 1975 to 8 March 1976, his status was changed from AWOL to deserter.

6.  His record contains a DD Form 458 (Charge Sheet), dated 28 July 1975, which shows court-martial charges were preferred against him for being AWOL from his BCT unit from on or about 18 March 1975 to on or about (no date was listed).

7.  His record contains a DD Form 458, dated 15 March 1976, which shows court-martial charges were preferred against him for being AWOL from his BCT unit from on or about 20 June 1975 to on or about 9 March 1976.

8.  On 16 March 1976, 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 UCMJ, the possible effects of an under other than honorable conditions discharge and the issuance of an Undesirable 
Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested 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.

9.  In this request for discharge he acknowledged he understood if his discharge request was 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.

10.  On 24 March 1976, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  

11.  He was discharged from the Army on 14 April 1976.  His DD Form 214 (Report of Separation from Active Duty) confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and he received an under other than honorable conditions character of service.  He completed 1 month and 8 days of net active service that period and had        3 months and 29 days of prior active service.  He had 263 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Title 38, CFR, section 3.12 (Character of discharge) states in:

	a.  Paragraph (c)(6) that benefits are not payable where the former service member was discharged or released by reason of a discharge under other than honorable conditions issued as a result of an absence without official leave (AWOL) for a continuous period of at least 180 days.  This bar to benefit entitlement does not apply if there are compelling circumstances to warrant the prolonged unauthorized absence.  The following factors will be considered in determining whether there are compelling circumstances to warrant the prolonged unauthorized absence.

		(1)  Subparagraph (c)(6)(i) that the length and character of service exclusive of the period of prolonged AWOL.  Service exclusive of the period of prolonged AWOL should generally be of such quality and length that it can be characterized as honest, faithful and meritorious and of benefit to the Nation.

		(2)  Subparagraph (c)(6)(ii) states the reasons for going AWOL.  Reasons which are entitled to be given consideration when offered by the claimant include family emergencies or obligations, or similar types of obligations or duties owed to third parties.  The reasons for going AWOL should be evaluated in terms of the person's age, cultural background, educational level and judgmental maturity. Consideration should be given to how the situation appeared to the person himself or herself, and not how the adjudicator might have reacted.  Hardship or suffering incurred during overseas service, or as a result of combat wounds of other service-incurred or aggravated disability, is to be carefully and sympathetically considered in evaluating the person's state of mind at the time the prolonged AWOL period began.

	b.  Paragraph (d) states a discharge or release because of one of the offenses specified in this paragraph is considered to have been issued under dishonorable conditions.

		(1)  Acceptance of an undesirable discharge to escape trial by general court-martial.

  		(2)  Willful and persistent misconduct.  This includes a discharge under other than honorable conditions, if it is determined that it was issued because of willful and persistent misconduct.  A discharge because of a minor offense will not, however, be considered willful and persistent misconduct if service was otherwise honest, faithful and meritorious.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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, an undesirable discharge was normally considered appropriate at the time.  

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that, having been advised by legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  There is no evidence of record and he has not provided evidence to show he was promised an under honorable conditions (general) character of service or that his discharge was unjust or violated his personal rights.  

3.  There is no evidence nor has he provided evidence to show his discharge violated the letter and spirit of Title 38, CFR, paragraph 3.12(6)(ii), or that his chain of command failed to take this portion of the code into consideration when considering his characterization of service.  In any case, Title 38 applies to Veterans benefits, not to the Armed Forces.

4.  Court-martial charges were preferred against him and he elected/requested a chapter 10 discharge rather than face a court-martial.  His unhappiness with his character of service, which appears to have resulted from his inability to obtain benefits, does mean an error or injustice occurred in his discharge processing.

5.  In view of the foregoing, there is an insufficient evidence to justify upgrading his characterization of service to an honorable or a general discharge in this case.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20140004002





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ABCMR Record of Proceedings (cont)                                         AR20140004002



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