RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 March 2008
	DOCKET NUMBER:  AR20070017557 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


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	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his undesirable discharge be changed to an honorable discharge.

2.  The applicant states that the Red Cross contacted him in Vietnam and told him that his father had died.  He states he was returned to the States and he was discharged.  He reenlisted in 1969 and was sent to Germany in the rank of specialist four, E-4.  The Red Cross contacted him again on 12 March 1970 and told him that his wife had abandoned his son.  He was told that he had to get his son or Child Protective Services would take him.  He states that he had to take care of his son.  After one year and six months, he returned to the Army and was discharged with an undesirable discharge.  The applicant states, in effect, that he served in Vietnam and he was willing to die serving his country.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 August 1969 and his DD Form 214 for the period ending 6 August 1973.

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 8 August 1968.  After completion of basic combat training and advanced individual training, he was awarded military occupational specialty 11B (light weapons infantryman). He served in Vietnam from 2 March 1969 to 23 April 1969.  He was promoted to the temporary rank of specialist four on 21 August 1969.  The applicant was honorably discharged on 27 August 1969 for the purpose of immediate reenlistment.  

3.  He reenlisted on 28 August 1969 for a period of five years. 

4.  On 17 November 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 10 May 1970 to 10 July 1970 and for failing to obey a lawful order from his superior noncommissioned officer.  

5.  On 4 February 1971, the applicant was convicted by a summary court-martial of being AWOL from 6 December 1970 to 14 January 1971.  He was sentenced to restriction to the limits of the Company Area, Special Processing Detachment, Fort Ord, California for 30 days and a forfeiture of $50.00 pay for one month.

6.  On 21 April 1971, the applicant was convicted by a summary court-martial of being AWOL from 8 March 1971 to 29 March 1971.  He was sentenced to a forfeiture of $95.00 pay for one month and a reduction to private first class (suspended for 90 days).  

7.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was AWOL from 17 May 1971 to 23 May 1971; however, there is no record of NJP for this period of AWOL.  This period of AWOL is recorded on his DD Form 214 for the period ending 6 August 1973.

8.  On 29 June 1973, charges were preferred against the applicant for being AWOL from 9 June 1971 to 26 June 1973.  

9.  On 29 June 1973, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs if an undesirable discharge was issued.  He submitted statements in his own behalf.  

10.  In support of his chapter 10 proceedings, the applicant stated, in effect, that he would accept any type of discharge to get out of the Army.  He stated that he hated the Army and if he was sent back to duty, he would just go AWOL again.  He acknowledged that he understood what an undesirable discharge was and he stated he would accept this type of discharge.  

11.  On 30 July 1973, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.  

12.  On 6 August 1973, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 6 months, and 17 days of active military service during that enlistment with 882 days of lost time due to AWOL.

13.  On 15 January 1988, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

14.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

15.  Army Regulation 635-200, 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.  

16.  Army Regulation 635-200, 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.  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.  There is no indication that the request was made under coercion or duress.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The applicant was advised of the effects of an undesirable discharge and he was afforded the opportunity to submit statements in his own behalf.  In the statements he made at the time of his separation, the applicant did not mention the circumstances concerning taking care of his son.  He admitted that he wanted to get out of the Army and would accept an undesirable discharge.  

4.  The applicant's record of service shows he received one Article 15 for being AWOL for 61 days and two summary courts-martial for being AWOL for a total of 58 days.  His Enlisted Qualification Record shows he was AWOL for 7 days.  He was later charged for being AWOL for a total of 748 days.  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 for an upgrade to an honorable or general discharge.

5.  The applicant's statements have been noted; however, he has failed to show through the evidence submitted or the evidence of record that the type of discharge issued to him was in error or unjust.


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.




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          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.