IN THE CASE OF: BOARD DATE: 27 August 2013 DOCKET NUMBER: AR20130000767 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 upgrade of his under other than honorable conditions discharge to a general discharge. 2. The applicant states he was unjustly treated by his commanding officer. His wife left him, taking his 2-year old son with her. He was having a difficult time satisfactorily performing his duties after that. He submitted a request for a hardship discharge but his commanding officer tore it up in front of him. He has a previous period of Regular Army (RA) service for which he was honorably discharged on 16 February 1972. He enlisted again on 7 January 1975 for economic stability. His son was born in 1975 and his wife was young. After he requested the hardship discharge, his commanding officer stated, "The only way you are leaving this base is by death or AWOL [absent without leave]." That left him no choice but to go AWOL to care for his son. The commander had a legal responsibility to be an advocate for him and process his request for a hardship discharge. He could have helped him with a reassignment to a post closer to his family so he could properly care for them. He may have also advised him of other services for base personnel with small children. He also states he needs an upgrade to establish eligibility for Department of Veterans Affairs (VA) health care benefits. 3. The applicant provides a DD Form 4 (Enlistment Contract), dated 7 January 1975. 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 7 January 1975, with 3 months and 26 days of prior active service, he enlisted in the RA. The highest grade he held was pay grade E-4. 3. On 17 December 1975, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a superior noncommissioned officer. 4. On 6 October 1976, he was honorably discharged for the purpose of immediate reenlistment. He completed 1 year and 9 months of net active service this period for 2 years and 26 days of total active service. On 7 October 1976, he reenlisted for a period of 6 years. 5. On 24 March 1977, he accepted NJP under Article 15, UCMJ for being AWOL during the period 16 to 19 March 1977. 6. On 22 June 1977, court-martial charges were preferred against the applicant for being AWOL during the period 4 April to 19 June 1977. 7. On 24 June 1977, he consulted with counsel and he voluntarily requested 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. He acknowledged he understood he could request a discharge for the good of the service because charges had been preferred against him that authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood he was making the request of his own free will and he had not been subjected to coercion with respect to his request for discharge. He acknowledged he had been advised of the implications attached to his request. He further acknowledged he understood that by requesting a discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged he understood the elements of the offenses charged. He stated that under no circumstances did he desire further rehabilitation; he had no desire to perform further military service. He acknowledged he understood if his request were approved he might be discharged under other than honorable conditions. He acknowledged he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State law. He waived his rights. He elected not to submit a statement in his own behalf. 8. On 6 July 1977, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate. 9. On 13 July 1977, the applicant was discharged accordingly. He completed 6 months and 19 days of net active service this period for 2 years, 7 months, and 15 days of total active service. 10. On 1 February 1983, the Army Discharge Review Board denied the applicant's request to upgrade of his under other than honorable conditions discharge. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provides, in pertinent part, 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, a discharge under other than honorable conditions is 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. His record shows he received NJP on two occasions. Court-martial charges were preferred against him for being AWOL. 2. He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, after being charged with an offense that authorized the imposition of a bad conduct or dishonorable discharge. This serious misconduct warranted a discharge under other than honorable conditions. His record contains no indication of procedural or other errors that would have jeopardized his rights. Both his characterization of service and the reason for discharge were appropriate considering the facts of the case. As such, he was properly and equitably discharged. 3. He had an opportunity to make a statement in which he could have raised mitigating circumstances but he failed to do so. He also could have used other channels (e.g., the chaplain’s office) to obtain help. 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. Additionally, the granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the VA. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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) AR20130000767 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130000767 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1