BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140005455 


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 undesirable discharge.

2.  The applicant states his discharge should be upgraded so he can receive the benefits he is entitled to.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a letter.

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 Regular Army on 28 October 1970.  On 13 April 1971, he was assigned to the 82nd Signal Battalion, Fort Bragg, NC.

3.  On 10 June 1971, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 1 to 9 June 1971.

4.  He was convicted by special courts-martial as follows:

	a.  On 26 November 1971, for one specification each of failing to report to his assigned place of duty on 7 September 1971 and being AWOL from 4 to 18 October 1971.  The punishment imposed included confinement for 2 months.

   b.  On 17 August 1972, for one specification of being AWOL from 10 April to 28 July 1972.  The punishment imposed included confinement for 5 months. 

5.  He was confined at Fort Riley, KS, and on 19 December 1972, he was assigned to the 416th Signal Company, Fort Lee, VA. 

6.  On 5 March 1973, he received NJP under the provisions of Article 15, UCMJ, for being AWOL from 5 to 16 February 1973.

7.  He subsequently went AWOL from 1 to 19 April 1973, 11 to 14 June 1973, and from 18 to 21 June 1973. 

8.  On 5 July 1973, he was reported as AWOL from his assigned unit and he was subsequently dropped from the rolls (DFR) as a deserter.

9.  On 25 April 1974, he was apprehended and returned to military control at Fort Bragg, NC.

10.  On 7 May 1974, court-martial charges were preferred against him for one specification each of being AWOL from 1 to 19 April 1973, 11 to 13 June 1973, 18 to 20 June 1973, and 5 July 1973 to 25 April 1974.

11.  He consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

12.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life. 

13.  With his request for a discharge, he submitted a statement on his own behalf wherein he stated he really disliked the Army, he could not continue any type of honorable service, he did not like authority, and he would not take orders without rebelling.  If he was released and all charges against him were dropped, he would undoubtedly go AWOL again.

14.  His immediate and senior commanders subsequently recommended approval of his request for a discharge with an undesirable discharge.

15.  On 23 May 1974, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 13 June 1974, he was discharged accordingly.

16.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial (separation program number (SPN) 246 (for the good of the service) with an under other than honorable conditions characterization of service and the issuance of a DD Form 258A (Undesirable Discharge Certificate).  He completed 1 year, 9 months, and 14 days of net active service this period with 634 days (1 year, 8 months, and 29 days) of time lost due to being AWOL and/or in confinement.

17.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

18.  The applicant provides the first page of a letter to himself, dated 26 November 2013, from the VA, Decatur, GA, wherein it stated the VA determined his under other than honorable conditions discharge was honorable for payment of education benefits.  The evidence showed no documentation to show what offense led to his discharge.  However, this office found he had served honorably from 28 October 1970 to 13 June 1974.


19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.    Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  An Undesirable Discharge Certificate was normally considered appropriate for an individual who was discharged for the good of the service at the time of his discharge.

	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.

20.  Title 38, U.S. Code, sections 1110 and 1131, permit the VA to award benefits and/or compensation for disabilities based on military service.  The VA operates under its own rules and laws and does not have the responsibility or authority for determining what type of discharge an individual receives. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms the applicant was charged with the commission of offenses 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.

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  He provides a letter that shows the VA determined he had honorable service from October 1970 to June 1974 for payment of VA education benefits; however, this does not indicate an error on the part of the Army.  The VA acts under its own rules/laws and does not have the authority to make determinations of an individual's characterization of service for anything other than VA purposes.  

4.  The evidence of record confirms he repeatedly went AWOL.  He received NJP on two separate occasions for failure to report and for being AWOL on two different occasions, and he was convicted by special court-martial on two separate occasions for being AWOL.  In addition, he went AWOL on four more occasions prior to his apprehension and return to military control on 25 April 1974 and he had almost 2 years of time lost due to being AWOL and/or in confinement at the time of his discharge.

5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is no basis for granting him 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)                                         AR20140005455





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ABCMR Record of Proceedings (cont)                                         AR20140005455



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