IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140014184 


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 undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states:

   a.  he is 61 years old and in need of some medical health benefits;
   
   b.  he is sorry for what he did and he would do things differently if he had the chance to do them over again; and
   
   c.  he was young and his Mom needed him at home.

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’s record shows he enlisted in Regular Army on 24 November 1969.  He served in military occupational specialty 63B (Wheel Vehicle Repairman).

3.  His DA Form 20 shows he was promoted to private (PVT/E-2) on 30 April 1970 and this was the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PVT)/E-1 on 4 December 1972, his final grade on active duty.

4.  Item 44 (Time Lost Under Section 972, Title 10, USC) of the applicant's 
DA Form 20 shows he accrued 830 days of lost time due to multiple periods of being absent without leave (AWOL) or in confinement between 6 January 1970 and 22 October 1972.

5.  A DA Form 20B (Insert to DA Form 20 – Record of Court-Martial Conviction) shows he was convicted by special court-martial on 6 March 1970 for being AWOL from 6 January to 11 February 1970.  He was sentenced to forfeiture of $50.00 a month for one month and one month of hard labor.

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it contains a duly constituted DD Form 214 that shows he received a UD on 7 December 1972.  It also shows he completed a total of 7 months and 3 days of total active service and accrued 658 days of time lost between the period 7 December 1970 to 22 October 1972.

7.  The applicant's DD Form 214 also shows he was separated under the provisions of Army Regulation 635-200 and assigned separation program number (SPN) 246, which indicates he was separated under the provisions of chapter 10 of this regulation, for the good of the service in lieu of trial by court martial.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.




9.  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, an undesirable discharge was normally considered appropriate at the time.

	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 contends his undesirable discharge should be upgraded.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  However, based on the entries on his DA Form 20 and his DD Form 214, it appears that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, specifically his extensive history of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

5.  Additionally, corrections or changes are not made to a record for the purpose of making an individual eligible for benefits offered by another 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)                                         AR20140014184





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ABCMR Record of Proceedings (cont)                                         AR20140014184



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