IN THE CASE OF:	  

		BOARD DATE:	    20 August 2015

		DOCKET NUMBER:  AR20150000295 


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 his life has changed subsequent to his service.  He is a father and grandfather and he has carried the guilt and shame of his discharge long enough.  He claims he became angry and went absent without leave (AWOL) when his request for leave was disapproved.  He subsequently resolved his anger and resentment and has become a model citizen.  He currently subsides only on Supplemental Security Income; however, he would like to be able to use all of the benefits veterans are allowed.  He believes he has been punished long enough and he feels his discharge no longer represents the man he has become.

3.  The applicant provides a 1-page personal letter.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a member of Disabled American Veterans as Counsel, he/she did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement. 

3.  Counsel provides no additional evidence.



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 12 September 1966.  He completed training and he was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

3.  His record contains Special Court-Martial Order Number 51, issued by Headquarters, 7th Battalion (Mechanized), 6th Infantry Regiment, 2d Armored Division, Fort Hood, TX, dated 15 August 1968, which shows he was convicted by a special court-martial of being AWOL from his unit during the period 22 April to 22 June 1968.

4.  The applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 2 May 1969, for being AWOL for the period 28 April 1969
* 11 September 1969, for being derelict in the performance of his duties on 3 September 1969
* 16 October 1969, for failing to go at the time prescribed to his appointed place of duty on 14 October 1969

5.  On 18 July 1972, the applicant completed a separation physical and he was found to be fully qualified for separation.

6.  The complete facts and circumstances of the applicant's discharge are not available for review; however, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 9 August 1972 after completing 3 years, 1 month, and 5 days of net creditable active military service with 61 days of lost time, plus 966 days lost time subsequent to his normal expiration term of service.  This form shows a separation program number of 246, denoting he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service.  It also shows his service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.

7.  His records document no acts of valor, significant achievement, or service warranting special recognition.

8.  The applicant provides a 1-page letter to the Board in which he states, at the time of his discharge, he had anger issues which he no longer claims to have.  He claims he has been a productive citizen and he believes his case should be reviewed.

9.  On 20 July 1996, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge; however, as the request was submitted beyond that board's statute of limitations; the application was returned without action.

10.  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 Department of Veteran Affairs (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 to an individual who was discharged for the good of the service.

	b.  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.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions are noted; however, the evidence of record does not appear to support his request for an upgrade of his discharge.

2.  The applicant received NJP under the provisions of Article 15 of the UCMJ on more than one occasion.  Ultimately, it appears that court-martial charges were preferred against him; however, he apparently elected to be discharged in lieu of trial by court-martial.

3.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, the applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though the applicant's records do not contain the complete facts and circumstances surrounding his discharge, it is presumed that his discharge process was accomplished in accordance with applicable regulations.

5.  The applicant's claim to VA benefits based on becoming a positive member of society does not mitigate the misconduct which led to his discharge.  In addition, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for VA benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

6.  In view of the foregoing, there appears to be no basis for granting the applicant a general or honorable 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)                                         AR20150000295





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ABCMR Record of Proceedings (cont)                                         AR20150000295



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