IN THE CASE OF:	  

		BOARD DATE:	  21 August 2008

		DOCKET NUMBER:  AR20080006521 


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.  

2.  The applicant states, in effect, that after serving two years in the Republic of Vietnam (RVN), he was sick with emotional problems, which is the main reason he went absent without leave (AWOL).  He states he received an honorable discharge after his service in the RVN, and that his UD happened after he reenlisted.  

3.  The applicant provides no additional documentary evidence in support of his application.  

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 record shows that on 8 July 1968, while a member of the United States Army Reserve (USAR), the applicant was involuntarily ordered to active duty.  He served until 8 May 1969, at which time he was honorably discharged, in the rank of specialist four (SP4), for the purpose of immediate enlistment in the Regular Army (RA).  The separation document (DD Form 214) he was issued at the time shows he completed 1 year, 4 months, and 15 days of active military service.  It also shows that he had earned the National Defense Service Medal and Marksman Marksmanship Qualification Badge with Carbine Bar during that period of active duty service. 

3.  On 9 May 1969, the applicant enlisted in the RA for 3 years.  His Enlisted Qualification Record (DA Form 20) shows he was awarded and served in military occupational specialty (MOS) 70A as a general clerk and MOS 71F as a postal clerk.  Item 31 (Foreign Service) shows he served in Germany from 
10 September 1968 through 14 May 1969.  It also shows he served in the RVN from 18 July 1969 through 17 July 1970.  

4.  Item 33 (Appointments and Reductions) of the applicant's DA Form 20 shows he was promoted to specialist four (SP4) on 26 February 1969, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 3 September 1971.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal; Bronze Star Medal; Vietnam Service Medal; RVN Campaign Medal with 60 Device; and 2 Overseas Service Bars.  

5.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that between 
1 February 1971 and 14 January 1972, he accrued a total of 323 days of time lost during three separate periods of AWOL, and a period of military confinement.

6.  On 3 September 1971, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 1 February through 11 August 1971.  The resultant sentence was confinement at hard labor for 2 months and a reduction to PV1.  


7.  On 8 November 1971, the applicant departed AWOL from his unit at 
Fort Benning, Georgia.  He remained away for 68 days until returning to military control on 14 January 1972.  

8.  After a court-martial charge was preferred against him, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge, of the effects of a discharge request for the good of the service, and of the rights available to him.  Subsequent to this counseling, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He included a statement in which he stated that he had discussed his discharge under any conditions with his wife, and that he could no longer put the Army ahead of his wife and family and that in order to rectify his personal problems, he needed to be discharged.  

9.  On 18 February 1972, the separation authority approved the applicant's discharge request and directed the applicant receive an UD.  On 2 March 1972, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed a total of 3 years, 3 months, and 20 days of active military service, and had accrued 323 days of time lost during the period covered by the DD Form 214 (9 May 1969-2 March 1972).  

10.  There is no indication in the record that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

11.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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. 

12.  The same regulation states that an under other than honorable conditions (UOTHC) discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a general discharge (GD) if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  At the time of the applicant's discharge the regulation provided for the issuance of an UD.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded based on his overall record of service, which included combat service in the RVN, was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, 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 rights of the applicant were fully protected throughout the separation process.  

3.  The record further shows that the applicant voluntarily requested discharge in order to avoid a court-martial that could have resulted in his receiving a punitive discharge, only after he had consulted with legal counsel and confirmed that he fully understood the ramifications of receiving an UD.  

4.  By regulation, the service of a member separated under the provisions of chapter 10, Army Regulation 635-200, is normally characterized as UOTHC, and at the time of the applicant's discharge the regulation provided for the issuance of an UD.  The separation authority can direct a GD if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

5.  Notwithstanding his combat service in the RVN, the applicant's record is not sufficiently meritorious to mitigate the misconduct that led to his UD.  His record reveals an extensive disciplinary history that includes his acceptance of NJP, his conviction by a SPCM, and his accrual of 323 days of time lost due to AWOL and confinement.  Therefore, the UD the applicant received was normal and appropriate under the regulatory guidance in effect at the time, and his overall record of service was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

6.  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)                                         AR20080006521





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ABCMR Record of Proceedings (cont)                                         AR20080006521



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