IN THE CASE OF:	   

		BOARD DATE:	  19 May 2015

		DOCKET NUMBER:  AR20140016840 


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, in effect, an upgrade of his under honorable conditions discharge to a fully honorable discharge.

2.  The applicant states:

* he received a letter from the Department of Veterans Affairs that stated his service is not honorable and his application for un-employability was denied 
* his DD Form 214 (Report of Separation from Active Duty) shows he received an under honorable conditions discharge 

3.  The applicant provides a letter, dated 23 September 2013, and an email, dated 24 August 2014, from the VA.

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.  Having had prior service in the U.S. Navy Reserve, the applicant enlisted in the Regular Army for a 3-year term on 26 April 1973. He was trained in and held military occupational specialty 91B (Medical Specialist). 

3.  He served in Korea from 25 August 1973 to on or about 20 February 1974.  He was awarded or authorized the National Defense Service Medal, Army of Occupation Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16). 

4.  On or about 1 April 1974, he was assigned to Company B, 15th Medical Battalion, 1st Cavalry Division, Fort Hood, TX. 

5.  On 20 May 1974, he departed his unit in an absent without leave (AWOL) status and on or about 20 June 1974, he was dropped from the Army rolls as a deserter.  He was returned to military control on 22 February 1975. 

6.  Subsequent to his return, on 26 February 1975, court-martial charges were preferred against him for one specification of being AWOL from 20 May 1974 to 22 February 1975. 

7.  On 5 March 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement in his own behalf

8.  On 10 March 1975, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

9.  On 14 March 1975. consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.

10.  On 25 March 1975, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 1 month, and 26 days of active service and he had 277 days of lost time. 

11.  On 20 April 1977, the Army Discharge Review Board recommended the characterization of service be upgraded to a general, under honorable conditions discharge. 

12.  Accordingly, the applicant's DD Form 214 was voided and he was reissued a new DD Form 214 as well as a discharge certificate reflecting an under honorable conditions (general) discharge. 

13.  He provides: 

	a.  A letter, dated 23 September 2013 from the VA informing him that he was not eligible for any VA benefits because the VA considered his service to be less than honorable (for VA purposes). 

	b.  An email, dated 24 August 2014, from the VA giving him an update regarding his application. 


14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 request that his under honorable conditions discharge be upgraded to a fully honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant 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 in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Although the ADRB upgraded his discharge to a general discharge, this action neither negated his 277 days of AWOL nor made his service satisfactory.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to a fully honorable discharge.
4.  The decision made by the VA regarding his eligibility or entitlements to benefits is not within the purview of this Board.  The VA is independent from the Department of the Army and is governed by its own laws and regulations.  Questions regarding VA benefits should be addressed to the VA. 

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)                                         AR20140016840





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ABCMR Record of Proceedings (cont)                                         AR20140016840



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