IN THE CASE OF: BOARD DATE: 17 December 2009 DOCKET NUMBER: AR20090012670 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, in effect, that his undesirable discharge be upgraded to a more favorable discharge. 2. The applicant states that he was young and had to attend to family matters and did not know the consequences of his actions. 3. The applicant provides a copy of his 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 born on 5 September 1952 and enlisted with parental consent at 17 years of age in San Antonio, Texas, on 13 January 1970 for a period of 3 years. He completed his basic training at Fort Lewis, Washington, and his advanced individual training as a food service specialist at Fort Lee, Virginia, before being transferred to Vietnam on 10 November 1970. 3. He was honorably discharged on 6 December 1970 for the purpose of immediate reenlistment. He reenlisted on 7 December 1970 for a period of 3 years and was advanced to the pay grade of E-4 on 8 December 1970. 4. He departed Vietnam on 9 November 1971 and was transferred to Fort Hood, Texas. 5. On 21 December 1972, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 6 November 1972 to 27 November 1972. He was sentenced to a forfeiture of pay, extra duty, and restriction. 6. On 7 November 1973, he was convicted by a special court-martial of being AWOL from 22 August 1973 to 16 October 1973. He was sentenced to confinement at hard labor for 2 months and a forfeiture of pay. 7. The applicant was transferred Fort Knox, Kentucky, on 18 December 1973. On 21 January 1974, the applicant was married in Corpus Christi, Texas, his home of record (HOR). 8. On 19 February 1974, he again was AWOL and remained absent in desertion until he was returned to military control at Fort Hood on 16 June 1974 where charges were preferred against him for the AWOL offense. 9. On 20 June 1974, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge. He also elected to submit a statement in his own behalf wherein he asserted that he went AWOL and wanted a discharge because his parents had separated, his mother got sick and his family was being broken up, and he was now married and his wife was mad because he was trying to take care of his family. 10. The chain of command indicated that the applicant had nonjudicial punishment imposed against him on three separate occasions and that he had been convicted by both summary and special courts-martial. The chain of command recommended approval of his request. 11. The appropriate authority (a lieutenant general) approved his request on 8 July 1974 and directed that he be furnished an Undesirable Discharge Certificate. 12. Meanwhile, the applicant was again AWOL on 29 July 1974. On 1 August 1974, he was discharged under other than honorable conditions in absentia under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 3 years, 9 months, and 8 days of total active duty and had 285 days of lost time due to AWOL and confinement. At the time of his discharge a letter was mailed to his HOR advising him of the procedures for applying to the Army Discharge Review Board for an upgrade of his discharge. 13. There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 14. A review of the applicant's official records failed to indicate that the applicant ever sought assistance from the chain of command for any family problems. 15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this 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, at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive. A discharge under other than honorable conditions was then and still is normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 2. Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances. 3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service and in doing so admitted guilt to the offense charged. 4. The applicant's contentions of being young and not understanding the consequences have been noted; however, he was 21 years of age at the time and he indicated in his request that he understood the consequences of submitting such a request. Accordingly, they are not sufficiently mitigating to warrant an upgrade of his discharge when considering the extensive length of his absence and his overall record of service. 5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20090012670 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090012670 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1