IN THE CASE OF:	  

		BOARD DATE:	  20 November 2014

		DOCKET NUMBER:  AR20140005338 


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 upgrade of his 1971 undesirable discharge to honorable.

2.  The applicant states he was not court-martialed and he served his country well and he got hurt on active duty in 1983.

3.  The applicant provides copies of his –

* 1971 DD Form 214 (Report of Transfer or Discharge)
* 1983 DD Form 214 
* 14 March 1983 Medical Evaluation Board (MEB) Proceedings
* Physical Evaluation Board (PEB) Proceedings

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 November 1970, the applicant enlisted in the Regular Army.  He never completed training. 

3.  He was repeatedly absent without leave (AWOL) and he escaped from pre-trial confinement.  When charges were preferred, the applicant consulted with counsel, on 27 May 1971, and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He stated he understood the charges against him and admitted he was guilty of at least one offense for which a punitive discharge was authorized.  He acknowledged he understood he could receive a discharge under other than honorable conditions and be issued an Undesirable Discharge Certificate.  He indicated he understood he could be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life.

4.  The chain of command recommended approval of his request and the issuance of a discharge UOTHC.  The separation authority approved the request and directed discharge UOTHC.

5.  On 7 July 1971, the applicant was so discharged.  He had served 4 months and 27 days of creditable service and had 83 days of time lost.

6.  In January 1983, the applicant enlisted in the U.S. Army Reserve and entered initial active duty for training.  In March 1983, he was referred to an MEB for a stress fracture in his right fore-foot.  A PEB found him unfit and ratable at 10 percent, but he was discharged for fraudulent enlistment.

7.  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.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

	b.  Paragraph 3-7 states 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 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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.

3.  The applicant's statement that he was not court-martialed is a true statement; however, he was not court-martialed solely because he opted to request a voluntary discharge in lieu of trial by court-martial that could have resulted in a punitive 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)                                         AR20140005338





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ABCMR Record of Proceedings (cont)                                         AR20140005338



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