IN THE CASE OF:  	  

		BOARD DATE:  20 November 2014	  

		DOCKET NUMBER:  AR20140007326 


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 a discharge upgrade.

2.  The applicant states, in effect, his discharge should be amended to honorable because he has changed and his improved conduct since leaving the Army merits the upgrade.  He also wishes to obtain benefits from the Department of Veterans Affairs (VA). 

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and 4 letters of support.

DISCUSSION AND CONCLUSIONS:

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 was inducted in the Army of the United States on 25 February 1969, and he held military occupational specialty 91B (Medical Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  While stationed in Germany, the applicant was given emergency leave because of his wife's medical condition and the need to care for his two young children.  He did not return from leave and remained in an absent without leave (AWOL) status from 18 July 1970 through 3 December 1972.  He returned to military control on 4 December 1972 and was placed in the Personnel Control Facility at Fort Jackson, SC.

4.  On 6 December 1972, court-martial charges were preferred against him for one specification of AWOL.  On that same date, the applicant was advised by counsel of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, 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.  He submitted no statements in his own behalf.

5.  In his request for discharge, he 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 VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 11 December 1972, the separation authority approved his request for discharge in lieu of court-martial and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 13 December 1972, he was discharged accordingly.

7.  His DD Form 214 shows he completed 1 year, 5 month, and 3 days of active military service.  It also shows he had 870 days of lost time.

8.  On 4 August 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  The applicant provides 4 letters of support which essentially maintain the applicant is a hardworking, church-going member of the community who has shown leadership and has not been in any kind of trouble.
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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

   b.  Paragraph 3-7a provides that an honorable discharge is given when the quality of the Soldier’s service has generally met standards of acceptable conduct and duty performance.

   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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered; however, there was insufficient evidence to support his request.

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200.  Discharges under this chapter are a result of a voluntary request for discharge in lieu of trial by court-martial.  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.

3.  Based on the applicant’s record of indiscipline his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His conduct rendered his service unsatisfactory.  Accordingly, there is no basis upon which to grant the applicant an honorable or a general discharge.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veteran's 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 veteran’s benefits is not within the purview of the ABCMR.


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)                                         AR20140007326





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ABCMR Record of Proceedings (cont)                                         AR20140007326



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