IN THE CASE OF:  	  

		BOARD DATE:  9 December 2014	  

		DOCKET NUMBER:  AR20140007515 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he was injured in the Army and should have been medically discharged.  He desires to have his discharge upgraded so that he can obtain Department of Veterans Affairs (VA) healthcare benefits.

3.  The applicant provides no additional documents with his application.

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 was inducted on 14 August 1972.  At the time of his induction he indicated he was single and listed no dependents.  He was transferred to Fort Leonard Wood, Missouri to undergo his training.

3.  On 15 October 1972, he went absent without leave (AWOL) and remained absent in desertion until he was returned to military control on 18 January 1973.  He again departed AWOL on 29 January 1973 and remained absent in desertion until he was again returned to military control on 16 April 1973.

4.  At the time of his return the applicant indicated that he was single and had three children.

5.  The applicant was pending trial by court-martial when he again went AWOL on 1 May 1973 and remained absent in desertion until he was apprehended by civil authorities on 20 November 1973 and was returned to military control.

6.  On 28 November 1973, charges were preferred against him for being AWOL from 15 October 1972 to 18 January 1973, 29 January 1973 to 16 April 1973, and 1 May 1973 to 21 November 1973.

7.  On 3 December 1973, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He also submitted a statement in his own behalf wherein he asserted that he did not make enough money in the Army to support his children and he could not adapt to the Army way of life.

8.  The appropriate authority (a brigadier general) approved his request for discharge on 5 December 1973 and directed the applicant be furnished an Undesirable Discharge Certificate.

9.  On 11 December 1973, 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.  He completed 3 months and 18 days of active service and had 376 days of lost time due to AWOL.  He was still in a trainee status.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.




11.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an undesirable discharge was normally issued.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the serious nature of his offenses and his otherwise undistinguished record of service.  Additionally, discharges are not normally upgraded simply for the purpose of qualifying individuals for benefits.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140007515





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ABCMR Record of Proceedings (cont)                                         AR20140007515



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