IN THE CASE OF:	  

		BOARD DATE:	  25 November 2014

		DOCKET NUMBER:  AR20140006621 


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 other than honorable discharge.

2.  The applicant states, in effect, that:

* he was discharged unfairly
* his current discharge is hindering receipt of veterans benefits. 
* he wasn't given proper due diligence regarding his discharge characterization

3.  The applicant provides a DD Form 293 (Application for The Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Armed Forces of the United Sates 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.  The applicant's record shows he enlisted in the Regular Army on 
19 February 1971.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 11B.  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:
 
* 31 March1970 for failure to go to prescribed place of duty.
* 8 September 1970 for missing movement
* 19 October 1970 for failure to obey a lawful order
* 19 November 1970 for failure to obey a lawful order
  
4.  Charges were preferred against the applicant on the following occasions:

     a. 16 December 1970 for 11 counts of failure to go at the time prescribed to his appointed place of duty.
 
     b. 3 December 1970 for 2 counts of failure to obey lawful orders and for breaking restriction.

5.  On 23 January 1971, the applicant consulted with counsel and 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 procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 2 February 1971, the separation authority approved the applicant's request for discharge and directed issuance of an undesirable discharge.


8.  On 19 February 1971, the applicant was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) for this period of service shows he completed 1 years, 5 months, and 1 day of total creditable active military service.

9.  On 7 April 1980, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides than 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 members service 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.

12.  Army Regulation 635-200, 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 applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered and found to be without merit.

2.  His record includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on four different occasions.

3.  His record also shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant contends that his discharge should be upgraded due to his pending application for veteran's benefits.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

7.  Based on his record of indiscipline which includes being; failure to go to prescribed place of duty on several occasions and failure obey a lawful order, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to relief requested.

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)                                         AR20140006621





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ABCMR Record of Proceedings (cont)                                         AR20140006621



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