IN THE CASE OF:	   

		BOARD DATE:	  6 April 2015

		DOCKET NUMBER:  AR20140011332 


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 to an honorable discharge.

2.  The applicant states he knows that he was wrong, but he does not believe that he was told everything about his discharge at the time and he was not aware of his situation.  If at all possible, he wants his discharge changed to honorable.  He has done everything possible to live a better life and support the United States.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States 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 enlisted in the Regular Army on 15 January 1971.

3.  In April 1971, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam on 7 June 1971 and he was further assigned to Headquarters and Headquarters Battery, 3rd Battalion, 82nd Artillery on 25 June 1971.  

5.  While in Vietnam, he went AWOL from 18 December 1971 to 11 May 1972, until he returned to military control at Fort Hood, TX.  On 18 May 1972, at Fort Hood, charges were preferred against him for this period of AWOL. 

6.  He consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that he understood he may be discharged under other than honorable conditions and receive an Undesirable Discharge Certificate.  He further understood that if he was issued an undesirable discharge, he would ineligible for many or all Army benefits administered by the Veterans Administration and that he would be deprived of his rights and benefits as a veteran under State and Federal laws.  He stated he fully realized these consequences and he nonetheless wished to make this application for a discharge for the good of the service.  

7.  On 25 May 1972, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate and reduction to private/E-1.  

8.  On 5 June 1972, he was discharged after completing 11 months and 28 days of creditable active service with 144 days of lost time.  

9.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within 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 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a 
punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  Paragraph 3-7a states 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 states 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 he does not believe he was told everything about his discharge at the time is acknowledged.  However, the evidence shows he was advised of the effects of a discharge under other than honorable conditions (undesirable) and that he might be deprived of many or all Army and VA benefits.  He acknowledged that he understood the effects of an undesirable discharge.

2.  The applicant's voluntary request for separation 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.  There is no indication that the request was made under coercion or duress.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid a court-martial and the punitive discharge that he might have received.

4.  His service record shows he received one Article 15 for failing to go at the time prescribed to his appointed place of duty and he was charged with being AWOL for 144 days.

5.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20140011332



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ABCMR Record of Proceedings (cont)                                         AR20140011332



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