IN THE CASE OF:	

		BOARD DATE:	  21 July 2015

		DOCKET NUMBER:  AR20140019876 


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 be upgraded to a general discharge under honorable conditions.

2.  The applicant states he is now 62 years old and he has lived a productive life during the last 42 years.  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 31 July 1972
* DD Form 258A (Undesirable Discharge), dated 31 July 1972

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.  On 17 February 1971, he enlisted in the Regular Army for 2 years.  On 
23 February 1971 he extended his enlistment for 12 months.

3.  On 26 May 1971, he accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 21-25 May 1971.

4.  On 18 June 1971, he was assigned to 95th Service Company, Redstone Arsenal, AL.

5.  On 7 July 1972, court-martial charges were preferred against the applicant for being AWOL from on or about 29 November 1971 to on or about 1 June 1972.

6.  The applicant 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.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* not making a statement in his own behalf
* advised he might be furnished an Undesirable Discharge Certificate

7.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  On 21 July 1972, the appropriate authority approved the applicant's voluntary request for discharge and directed that the applicant be issued an Undesirable Discharge Certificate.

9.  On 31 July 1972, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 11 months and 8 days of total active service that was characterized as under conditions other than honorable.  He had 189 days of time lost.

10.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 12 August 1977, the ADRB reviewed and denied the applicant's request for upgrade under the Department of Defense Discharge Review Program (Special).  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  On 4 April 1977, the Department of Defense (DOD) directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP) required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  

12.  On 8 October 1978, Public Law 95-126 was enacted.  This legislation required that the Service Departments establish historically consistent uniform standards for discharge reviews.  Previous upgraded discharges under the SDRP and other programs were to be reconsidered using the uniform standards. Those individuals whose SDRP upgrades were not affirmed upon review under the historically consistent uniform standards were not entitled to Department of Veterans Affairs (VA) benefits, unless they had been entitled to such benefits before their SDRP review.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

	b.  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.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service. 

3.  He had 189 days of time lost due to AWOL.  His service was unsatisfactory.  He does not meet the criteria for a general discharge under honorable conditions.

4.  The ADRB denied his request for upgrade under the DOD SDRP.  Public Law 95-126 required the Service Departments to establish historically consistent uniform standards for discharge reviews.  Using these uniform standards there is an insufficient basis for upgrading the applicant's 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)                                         AR20140019876



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ABCMR Record of Proceedings (cont)                                         AR20140019876



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