IN THE CASE OF:	  

		BOARD DATE:	  8 September 2015

		DOCKET NUMBER:  AR20150001396 


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 to a general discharge.

2.  The applicant states:

* he was injured during basic training at the Fort Ord base housing units while off duty
* a heater hose on his car broke and he was left with second or third degree burns through his lungs
* he was unable to finish basic training
* he believes he should have been released from active duty until his lungs healed instead of being discharged

3.  The applicant 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 30 September 1974.  

3.  On 2 November 1974, the applicant accepted nonjudicial punishment (NJP) for failure to obey a lawful order.

4.  On 10 October 1975, the applicant was notified that charges were pending against him for being absent without leave (AWOL) on the following dates:

* 2 November 1974 until 24 February 1975
* 7 April until 15 April 1975
* 31 July until 5 October 1975

5.  He acknowledged receipt of the notification for discharge.  On 7 March 1975, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  Along with his request for discharge he submitted a statement in his own behalf.  He stated:

* he joined the Army because of his financial situation
* he wanted out of the Army because he could not cope with its different way of life
* if he was made to continue on active duty he would either go AWOL or have a breakdown
* he would accept an undesirable discharge; however, he preferred a general discharge
* he understood he would lose his Department of Veterans Affairs (VA), benefits, transportation allowances, naturalization benefits, and "desert land preference"

6.  On 1 November 1975, the appropriate authority approved the applicant's request and directed the issuance of an undesirable discharge.

7.  On 13 November 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 7 months and 6 days of total active service.  He had approximately 118 days of lost time due to AWOL.  He received an Undesirable Discharge Certificate.

8.  A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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 undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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 states 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 contentions have been noted.  However, his contentions are not supported by any evidence of record.

2.  His records show he accepted NJP for failure to obey a lawful order and charges were pending against him for being AWOL from 2 November 1974 until 24 February 1975, 7 April until 15 April 1975, and 31 July until 5 October 1975.

3.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority directed the issuance of an undesirable discharge.

4.  The type of discharge he received appropriately reflects his overall record of service.  Considering the nature of his offenses the type of discharge he received was not too severe.  His service simply did not rise to the level of a general or an 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)                                         AR20150001396



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ABCMR Record of Proceedings (cont)                                         AR20150001396



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