IN THE CASE OF:	  

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140006832 


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 to a general or an honorable discharge.

2.  The applicant states that he requested a hardship discharge, but it was denied.  He went absent without leave (AWOL) from the Army because his child died and his child's mother threatened to leave him.  His officer-in-charge (OIC) contacted the applicant's family and told them the applicant was AWOL and he was going to their location to hurt them.  The applicant states he was a good Soldier with no other problems while he was in the Army.  He is not in good health and an upgrade of his discharge will help him in obtaining health care benefits. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 3 December 1976 for a period of 3 years.  Upon completion of training, he was awarded military occupational specialty 51B (Carpentry and Masonry Specialist).

3.  In May 1977, he was assigned to Headquarters and Headquarters Company, 5th Engineer Battalion, Fort Leonard Wood, MO.  He was promoted to the rank of specialist four (SP4)/pay grade E-4 on 30 August 1978.

4.  On 6 March 1979, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 1 December 1978 to 8 February 1979.

5.  On 6 March 1979, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might –

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration (VA)
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf and he elected to submit a statement.
   e.  The applicant and his counsel placed their signatures on the document.

   f.  The applicant's statement shows he was having personal problems that he thought the Army could not help him with.  His daughter died in October 1978, he and his wife went to the chaplain, and he couldn't understand why he had to stay in the Army.  He consulted with his OIC about a discharge and his OIC indicated he would help him.  However, his OIC then began to tell him how to spend his pay and that he should divorce his wife.  He resented the fact that his OIC was getting involved in his personal business.  He stated the Army didn't help him when he needed help, so he went AWOL.  When he was AWOL, his OIC called his mother and told her that he (the applicant) was crazy and out to get his wife.  He added that he turned himself in to get a discharge.

6.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an under other than honorable conditions discharge.

7.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

8.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 26 March 1979 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, with an under other than honorable conditions characterization of service.  He had completed 2 years, 1 month, and 17 days of net active service during this period and he had 69 days of time lost.

9.  A review of the applicant's military personnel records failed to reveal any evidence that the applicant submitted a request for hardship discharge or any evidence of denial of a request for hardship discharge.  This review also revealed the applicant applied to the Army Discharge Review Board for an upgrade of his discharge in April 2014, which was after that board's 15-year statute of limitations.

10.  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 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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 contends his discharge should be upgraded because he was experiencing personal problems at the time and he was denied a hardship discharge; his OIC made false statements about him to his mother while he was AWOL; he was a good Soldier; and an upgrade of his discharge will help him obtain health care benefits. 

2.  There is no evidence of record that shows the applicant submitted a request for hardship discharge or that his request for hardship discharge was denied.

3.  The sincerity of the applicant's comments regarding statements made by his OIC is not in question.  In fact, the evidence of record shows the statement the applicant made at the time of his separation processing was available to the separation authority as part of the applicant's request for discharge.  Accordingly, it is reasonable to conclude the separation authority considered the applicant's statement, along with the charges against the applicant, when he approved his request for discharge in lieu of trial by court-martial.

4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the reason for discharge, and characterization of service were appropriate and equitable.


5.  During the period of service under review, the applicant was charged with an offense punishable by a bad conduct or dishonorable discharge, he had 69 days of time lost, and he was reduced to private (E-1) prior to his discharge.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

6.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting the requested relief.

7.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the VA or appropriate government agency.

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)                                         AR20140006832



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ABCMR Record of Proceedings (cont)                                         AR20140006832



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