IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150016142 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___x____ ___x____ ___x____ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150016142 BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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. IN THE CASE OF: BOARD DATE: 13 December 2016 DOCKET NUMBER: AR20150016142 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. He also requests additional service credit. 2. The applicant states he wants his discharged upgraded to qualify for Department of Veterans Affairs (VA) benefits. He was absent without leave (AWOL) because he had family problems; his mother was sick and his father had passed. He was told his discharge would be upgraded to a general discharge in 6 months; it has been over 40 years. He knows he completed more time in the service. His service is characterized as under other than honorable conditions. This is unfair; he was not a dishonorable Soldier. 3. The applicant provides: * self-authored letter * 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 enlisted in the U.S. Army Reserve on 24 April 1973 for a period of 6 years under the Delayed Entry Program. He was discharged from the Delayed Entry Program and he enlisted in the Regular Army on 30 April 1973 for a period of 3 years. 3. On 6 March 1974, he was convicted by a special court-martial of being AWOL from 9 October 1973 to 7 December 1973. He was sentenced to confinement at hard labor for 2 months, forfeiture of $100.00 pay per month for 2 months, and reduction to E-1. On 17 March 1974, the convening authority approved the sentence. 4. He was AWOL again from 3 September 1974 to 29 April 1975. On 6 May 1975, charges were preferred against him for the AWOL period. 5. On 9 May 1975 after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf. 6. On 2 June 1975, the separation authority approved his voluntary request for discharge and directed the issuance of an Undesirable Discharge Certificate. 7. On 19 June 1975, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10. He completed 1 year, 2 months, and 2 days of creditable active service with 348 days of lost time under Title 10, U.S. Code, section 972. His service was characterized as under other than honorable conditions. 8. There is no evidence showing he completed any other active duty service other than the period 30 April 1973 to 19 June 1975, minus his lost time (348 days). 9. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. REFERENCES: 1. 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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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. 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. 2. The U.S. Army has never had a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines the character of service or the reason for discharge, or both, was improper or inequitable. 3. Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers on retirement, discharge, or release from active duty service or control of the Active Army. It established standardized policy for preparing and distributing the DD Form 214. The instructions stated all service will be less time lost under Title 10, U.S. Code, section 972, and time lost subsequent to expiration of term of service. (The amount of net service during this period is computed by subtracting the date of entry from the date of separation. Time lost under Title 10, U.S. Code, section 972, and non-creditable time after expiration term of service, if any, is deducted.) 4. Title 10, U.S. Code, section 972, provides that an enlisted member of an Armed Force who: (1) deserts; (2) is absent from his or her organization, station, or duty for more than 1 day without proper authority, as determined by competent authority; (3) is confined by military or civilian authorities for more than 1 day in connection with a trial, whether before, during, or after the trial; or (4) is unable to perform his or her duties for more than 1 day, as determined by competent authority, because of intemperate use of drugs or alcoholic liquor, or because of disease or injury resulting from his misconduct; is liable, after his or her return to full duty, to serve for a period that, when added to the period the member served before his or her absence from duty, amounts to the term for which the member was enlisted or inducted. DISCUSSION: 1. The applicant requested an upgrade of his discharge to meet eligibility for VA benefits. However, the character of a discharge is not changed solely for the purpose of qualifying an applicant for veterans' benefits. Each application is considered based on its individual merits. 2. His contention he was AWOL due to family problems was noted. However, family problems alone are normally not a basis for upgrading a discharge. 3. Although he contends he was informed that his discharge would automatically be upgraded to a general discharge in 6 months and it has been over 40 years since he was discharged, a discharge upgrade is not automatic. Each case is considered based on the evidence presented. 4. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 5. His record of service included one special court-martial conviction and 348 days of lost time. As a result, his record of service was not satisfactory. 6. Although he contends he should be credited with additional service, there is no evidence and he provided no evidence showing he completed more than 1 year, 2 months, and 2 days of creditable active service during the period 30 April 1973 to 19 June 1975. His 348 days of lost time under Title 10, U.S. Code, section 972, does not count toward his creditable service. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150016142 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150016142 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2