IN THE CASE OF:	  

		BOARD DATE:	  28 May 2015

		DOCKET NUMBER:  AR20140015162 


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.

2.  The applicant states he was unfairly judged.  

3.  The applicant provides a self-authored statement and a newspaper article.

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 29 October 1974.  

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three separate occasions for being absent without leave (AWOL) from 3 to 24 February (22 days) and 30 May to 8 June 1975 (9 days) and failing to go at the time prescribed to his appointed place of duty on 20 and 21 June 1975.

4.  On 23 July 1975, charges were preferred against him for being AWOL from 30 June to 22 July 1975 (23 days).  On 19 August 1975, he was charged with being AWOL from 24 July to 17 August 1975 (24 days).  

5.  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.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  He submitted statements in his own behalf in which he stated he wanted out of the Army because he never wanted to be in the service.  He was arrested in New York and was advised by his lawyer to join the Army or face 6 months in jail.  The District attorney made him get a notarized letter from his recruiter stating that he was enlisting in the Army.  He had been asking to get out for close to ten months and nothing happened and he ended up in jail anyway.  He requested an undesirable discharge rather than going to court with the possibility of doing more time.  He realized that this might hurt him in the future, but being free was a lot more important to him.  

6.  On 8 October 1975, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 with the issuance of an undesirable discharge and reduction to the lowest enlisted grade.  

7.  On 15 October 1975, he was discharged after completing 8 months and 27 days of creditable active service with 77 days of lost time.  

8.  He provided a self-authored statement in which he stated he was requesting an upgrade of his discharge because:

   a.  He was recently asked by one of his daughters how the recent VA scandal affects him after she read the attached article.
   
   b.  He told her he received a bad discharge and explained the reasons to her.  He was prompted by both daughters to request an upgrade in his discharge.
   
   c.  He would like to have a blemish removed from his record that was the result of being a wayward teenager.
   
   d.  He is now about to turn 60 years old, he is a proud American, and he would like his daughters to be proud of him.

9.  He provided a newspaper article reporting on a VA scandal regarding veterans who were placed on official waiting lists at VA hospitals for doctor appointments who never received care.  

10.  On 11 January 1989, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 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 an individual who was discharged for the good of the Service.  

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, 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 he believes he was unfairly judged is acknowledged.  However, his service record is void of evidence to support his claim.  


2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It appears all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears that the applicant's discharge appropriately reflects his overall record of military service.

3.  His service record shows he received three Article 15s, was charged for being AWOL, and he had 77 days of lost time.  

4.  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)                                         AR20140015162



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ABCMR Record of Proceedings (cont)                                         AR20140015162



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