IN THE CASE OF: BOARD DATE: 20 May 2010 DOCKET NUMBER: AR20090019043 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 honorable or general under honorable conditions. 2. The applicant states: * he needs his discharge upgraded to file for Department of Veterans Affairs (VA) benefits * he was absent without leave (AWOL) to support his wife * he was ordered to stay on post for training and his wife lived off post * he was not getting paid because his records had been burned 3. The applicant provides: * DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice) * special court-martial orders * DD Form 214 (Report of Separation from Active Duty) 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 was inducted into the Army of the United States on 13 July 1966. He completed basic combat training and advanced individual training and he was awarded military occupational specialty 13B (field artillery crewman). 3. On 7 December 1966, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty. His punishment consisted of a forfeiture of pay (suspended), restriction, and extra duty. 4. On 11 July 1967, the applicant was convicted by a special court-martial of being AWOL from 6 February 1967 to 8 June 1967. He was sentenced to be confined at hard labor for 4 months and to forfeit $30.00 pay per month for 4 months. On 15 July 1967, the convening authority approved the sentence, but suspended the portion adjudging forfeiture of pay ($30.00 per month for 4 months) for 4 months. On 28 July 1967, the unexecuted portion of the sentence to confinement at hard labor for 4 months was suspended for 4 months. 5. The applicant went AWOL on 21 September 1967 and returned to military control on 14 August 1975. On 26 August 1975, charges were preferred against the applicant for the AWOL period. 6. On 27 August 1975 after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected to submit a statement in his own behalf. In summary, he stated: * he had a good record until he stopped receiving his pay and his wife stopped getting her allotment * he got no help from the post finance office * he went to the post chaplain and got no help * he went back to the post finance office and he was told his records were lost and he was instructed to go to the Red Cross * he got a $10.00 loan from the Red Cross which did not do much for his bills, so he went AWOL 7. On 29 August 1975, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge. 8. Accordingly, the applicant was discharged with an undesirable discharge on 19 September 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 10 months and 20 days of creditable active service with 3,030 days of lost time. 9. There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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. An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the service. 11. Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel. 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. 12. Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. A discharge is not upgraded for the purpose of obtaining VA benefits. 2. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations. 3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case. 4. The applicant's brief record of service included one nonjudicial punishment, one special court-martial conviction, and 3,030 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded 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) AR20090019043 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090019043 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1