IN THE CASE OF:	  

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140015501 


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 upgrade of his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states:

	a.  he knows he made mistakes and apologizes for them;

   b.  he ran away from home because of the physical, mental, and psychological abuse he had to endure from his step-parents and without being drafted, he enlisted in the Army with good intentions;
   
   c.  he had a lot of hatred inside because of his childhood and tried hard to make it, but he guesses it caught up with him and he lost control;
   
   d.  he has maintained a clean record and learned how to control his anger since his discharge, which he credits to his military service, unlike a lot of his family who have gone to prison, overdosed and/or are dead from suicide;
   
   e.  although disabled, he manages properties and he requires a veteran's card instead of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in order to receive company benefits;
   
   f.  he manages his own medical care and does not expect the military to cover him, and he is not asking for medical care from the Department of Veterans Affairs (VA); and
   g.  he was told his UD would be upgraded to an HD six months after his discharge and now only asks for a chance to upgrade it to a GD in order to clear his record for his family.

3.  The applicant provides a self-authored statement.

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 military record shows he enlisted in the Regular Army on 19 November 1968 for 3 years.  He was trained in and served in military occupational specialty 63B (Wheel Vehicle Mechanic).

3.  His DA Form 20 (Enlisted Qualification Record) shows he was twice promoted to private first class (PFC/E-3) on 3 July and 29 December 1969 which is the highest grade he attained while serving on active duty.  Item 42 (Remarks) states that on 27 June 1970, while in an absent without leave (AWOL) duty status, he was arrested by civilian authorities in Baltimore, Maryland and charged with possession of a deadly weapon.

4.  On 30 September 1970, a DD Form 458 (Charge Sheet) was completed preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the following periods:

* 2 June – 20 June 1970
* 12 July – 20 July 1970
* 31 July - 23 September 1970


5.  On 1 October 1970, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  He indicated he had not been subjected to coercion whatsoever by any person and made his request of his own free will.  He elected not to submit a statement on his own behalf.

6.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UD.

7.  On 26 October 1970, the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, with a UD and reduction to the lowest enlisted rank.

8.  On 26 October 1970, the applicant was discharged accordingly.  He completed 1 year, 7 months, and 25 days of net active service with approximately 73 days of time lost.

9.  On 7 February 1977, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade.

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

	a.  Chapter 10 states 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 (HD) or GD is authorized, an UD at the time was normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 GD 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 U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  The evidence of record confirms he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge for being AWOL during three separate periods.  After consulting with legal counsel, he voluntarily requested discharge in lieu of trial by court-martial to avoid possible incarceration and a punitive discharge.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a GD or HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now.

4.  His post-service conduct and his apology for his mistakes are noted.  Neither is a sufficient basis for upgrading his properly-issued discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140015501



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ABCMR Record of Proceedings (cont)                                         AR20140015501



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