IN THE CASE OF: BOARD DATE: 17 February 2010 DOCKET NUMBER: AR20090014606 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 (UD) be upgraded to a general discharge (GD), under honorable conditions. 2. The applicant states, in effect, he was 18 years of age and saw friends and family members returning from the Republic of Vietnam (RVN) with physical and mental injuries or in coffins, and he feared his own fate. He claims he expressed these fears to his superiors and requested to be separated; however, they failed to listen and he went absent without leave (AWOL) in order to get their attention. He also claims that he was discharged without the benefit of a court-martial or psychiatric evaluation. He further indicates that he has been a productive member of society since his discharge. 3. The applicant provides the following documents in support of his application: DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); self-authored letter, dated 25 April 1983; reassignment orders, dated 30 November and December 1971; and discharge documents. 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’s military record shows he enlisted in the Regular Army (RA) and entered active duty on 27 September 1971. He was trained in and awarded military occupational specialty 71B (Clerk Typist). His record documents no acts of valor or significant achievement. 3. The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was promoted to private (PV2)/E-2 on 27 January 1972, and this is the highest rank/grade he attained while serving on active duty. Item 44 (Time Lost) shows he accrued 129 days of time lost during three separate periods of AWOL. He was AWOL from 18 March to 9 April 1972, 19 April to 8 May 1972, and 16 May to 2 August 1972. He was also in confinement from 8 to 17 August 1972. 4. On 12 April 1972, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 18 March to 10 April 1972. His punishment for this offense was a reduction to private/E-1 (suspended), a forfeiture of $144.00 pay for 2 months, and 21 days of extra duty. 5. On 8 August 1972, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for two specifications of violating Article 86 of the UCMJ by being AWOL from on or about 19 April to 9 May 1972, and from 16 May to 2 July 1972. 6. On 8 August 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an UD, and of the procedures and rights that were available to him. 7. Subsequent to receiving legal counsel on 8 August 1972, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial, under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel). In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. He also indicated he understood he could face substantial prejudice in civilian life because of a UD discharge. 8. On 11 August 1972, the applicant submitted a statement in his own behalf in which he stated that he had 6 months of good time, 4 1/2 months of bad time, 3 records of NJP for being AWOL, and that he was pending court martial. He also admitted he was out of jail on bail for "possession and sales" and stated he was only wasting the Army’s money and time. He further indicated his only desire was to be discharged from the Army so that he could go to civilian court, receive his punishment and serve his time. 9. On 26 August 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued a UD under the provisions of chapter 10, Army Regulation 635-200. On 31 August 1972, the applicant was discharged accordingly. The DD Form 214 he was issued at the time confirms he completed a total of 6 months, and 25 days of creditable active military service and he had accrued 129 days of lost time due to being AWOL and in confinement. 10. On 15 August 1977 and 13 April 1984, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board (ADRB) concluded the applicant’s discharge was proper and equitable and voted to deny his request for an upgrade of his discharge. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. The separation authority may issue a GD or honorable discharge (HD) if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate. At the time of the applicant's discharge, the issuance of a UD was authorized. 12. Paragraph 3-7a of the enlisted separations regulation provides that an honorable discharge (HD) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. Paragraph 3-7b provides that a GD 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. The applicant’s contentions that his UD should be upgraded because he was fearful of the circumstances that may have awaited him, that he expressed his fears and his superiors refused to listen, that he was discharged without a court-martial, or psychiatric evaluation, and that he has been a productive member of society were carefully considered. However, these factors are not sufficiently mitigating to support granting relief in this case. 2. The evidence of record confirms the applicant was charged with the commission of offenses which were punishable with a punitive discharge under the UCMJ. It further shows that after consulting with legal counsel and being advised of his rights and the effects of an UD, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process. 3. The UD the applicant received was normal and appropriate under the regulatory guidance, and it accurately reflects his overall undistinguished record of service. His record documents no acts of valor or significant achievement; however, it does reveal an extensive disciplinary history that included NJP action and accrual of 129 days of lost time due to being AWOL and in confinement. This undistinguished record of service clearly did not support the issue of an HD or GD by the separation authority at the time of the applicant's discharge, and it does not support an upgrade at this late date. 4. Additionally, there is no evidence that the applicant had a psychiatric problem that contributed to him going AWOL or that he sought help for any personal concerns that he may have had through his chain of command. In fact, the applicant went AWOL and he was out on bail pending trial for a civilian offense when he was discharged. He personally stated that he wanted to be discharged so that he could focus on his civilian trial. 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) AR20090014606 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090014606 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1