IN THE CASE OF:	  

		BOARD DATE:	  3 February 2015

		DOCKET NUMBER:  AR20140011401 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was told that he could be "sent out" on a hardship discharge because his father had cancer.  He received discharge papers on       2 January 1975 that indicated he received an honorable discharge.  Now, he is being told he cannot receive benefits administered by the Department of Veterans Affairs (VA) because of his dishonorable discharge.

3.  The applicant provides Armed Forces Examining and Entrance Station (AFEES), Knoxville, TN, Special Orders Number 1, dated 2 January 1975.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 27 November 1974.  

3.  AFEES, Knoxville, TN, Special Orders Number 1, dated 2 January 1975, show he was honorably discharged from the USAR DEP on 1 January 1975, by reason of enlistment in the Regular Army.  

4.  He enlisted in the Regular Army on 2 January 1975.  

5.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows he was absent without leave (AWOL) during the period 
14 May through 18 July 1975.  

6.  On 18 July 1975, court-martial charges were preferred against him for missing movement and for the AWOL offense.  

7.  On 21 July 1975, 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.  

8.  In doing so, he acknowledged that the charges preferred against him under the Uniform Code of Military Justice (UCMJ) authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:

* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA
* he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

9.  He submitted a statement in his own behalf, in which he stated he just did not like the Army and he wanted out, that he did not have rehabilitation potential at all, and that he did not care how the discharge would affect him.

10.  On 10 September 1975, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an Undesirable Discharge Certificate.  On 29 September 1975, he was discharged accordingly.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 5 months and 15 days of creditable active duty service, that he accrued 103 days of lost time, and that his service was characterized as under other than honorable conditions.

11.  He provided AFEES, Knoxville, TN, Special Orders Number 1, dated 
2 January 1975, which shows he was honorably discharge from the USAR DEP on 1 January 1975 by reason of enlistment in the Regular Army.

12.  There is no evidence that indicates the applicant requested a hardship discharge based on health issues pertaining to family members; specifically, his father's cancer.  Nor is there evidence that indicates health issues pertaining to his family members were the proximate cause of his AWOL offense.  

13.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgraded of his discharge.  

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to 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 request for an upgrade of his under other than honorable conditions discharge was carefully considered and his contentions were noted.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  By requesting discharge, he admitted he was guilty of the charge.

3.  His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  During his brief period of service, his record of indiscipline includes court-martial charges for AWOL and 103 days of lost time.  Based on the seriousness of his offense and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  The applicant failed to show that his discharge process and/or the character of service he received were in error or unjust.  Therefore, there is an insufficient evidentiary basis for granting the requested relief.

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)                                         AR20140011401



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ABCMR Record of Proceedings (cont)                                         AR20140011401



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