IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140019946 


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 that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states that a lieutenant and a corporal falsely accused him of being disrespectful and threatening them while intoxicated.  He also states that alcohol can cloud your judgment and make you say and do things you later regret.  Accordingly, he desires to regain his honor and obtain medical benefits. 

3.  The applicant provides a one-page letter explaining 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 enlisted in the Regular Army on 14 February 1973 for a period of 3 years, training as an infantryman and assignment to the 2nd Armored Cavalry Regiment in Germany.  He successfully completed his training and was transferred to Germany on 17 July 1973.  He was advanced to the pay grade of E-4 on 1 January 1975.

3.  On 23 March 1975, he was honorably discharged fro the purpose of immediate reenlistment.  He had served 2 years, 1 month and 10 days of active service.

4.  On 24 March 1975, he reenlisted for a period of 6 years, his present duty assignment and a selective reenlistment bonus (SRB).

5.  On 6 June 1975, nonjudicial punishment was imposed against the applicant for being disrespectful in language towards a superior commissioned officer, a superior noncommissioned officer (NCO) and for being incapacitated for the proper performance of his duties due to overindulgence in intoxicating liquor.

6.  On 13 August 1975, charges were preferred against the applicant for disobeying a lawful order from a superior NCO and charge of quarters (CQ), being disrespectful in language towards a superior NCO, unlawfully assaulting a superior NCO, and wrongfully communicating a threat to injure and kill a superior NCO and his family.  The charges were supported by five sworn witness statements.

7.  After consulting with defense counsel, the applicant submitted a request for 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 he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

8.  The appropriate authority (a major general) approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10 on       26 August 1975 and directed the issuance of an Undesirable Discharge Certificate. 


9.  On 4 September 1975, he was discharged accordingly.  He completed 
5 months and 11 days of his current enlistment for a total of 2 years, 6 months and 21 days of creditable active service.

10.  On 11 April 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to honorable and a change of his reenlistment (RE) code that would allow him to enlist in the Army.  He stated at that time that he desired to obtain education benefits that would allow him to go to school and work at the same time.  After considering the available facts and circumstances in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 22 January 1982.

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

	a.  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.  A discharge under other than honorable conditions was normally considered appropriate.

	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's voluntary request for discharge 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the serious nature of the charges against him and his otherwise undistinguished record of service.  His service simply did not rise to the level of a general discharge.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a 
change in his or her discharge.  The Army also does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20140019946





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ABCMR Record of Proceedings (cont)                                         AR20140019946



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