IN THE CASE OF:	  

		BOARD DATE:	        29 JULY 2008

		DOCKET NUMBER:  AR20080007709 


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 that his undesirable discharge be upgraded to a fully honorable discharge.

2.  The applicant states that his undesirable discharge was inequitable because it was based on one isolated incident.  He goes on to state that he loves his country and he served it and it’s citizens and made one mistake because his son had died and his wife was going to divorce him. 

3.  The applicant provides three third-party letters of support with 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 was born on 4 February 1947 and enlisted in the Regular Army in Atlanta, Georgia on 21 February 1967 for a period of 3 years.  He underwent his basic combat training at Fort Benning, Georgia and his advanced individual training (AIT) at Fort Jackson, South Carolina.

3.  Upon completion of his AIT he was transferred to Vietnam as a light weapons infantryman on 20 July 1967.  He only remained in Vietnam until 1 September 1967 when he was transferred to Fort Benning.  On 5 April 1968, he was advanced to the pay grade of E-4 and was reclassified to the military occupational specialty (MOS) of a cook (94B2O).  

4.  On 29 May 1968 he was transferred to Korea for duty as a cook and was promoted to the pay grade of E-5 on 6 September 1968.

5.  On 15 May 1969, he was honorably discharged for the purpose of immediate reenlistment.  On 16 May 1969, he reenlisted for a period of 6 years and assignment to Europe.    

6.  He was transferred to Germany on 18 August 1969, where he elected to serve an unaccompanied tour.  On 29 May 1970, he requested reassignment to Vietnam.

7.  On 2 October 1970, he was transferred back to Vietnam and was assigned as the first cook at the United States Army - Vietnam Advisor School.  He departed Vietnam on 1 October 1971 and was transferred to Fort Lewis, Washington.

8.  On 10 November 1971, he went absent without leave (AWOL) and remained absent in desertion until he was apprehended by civil authorities in Thomaston, Georgia on 9 July 1972, and was returned to military control at Fort Benning, where charges were preferred against him for the AWOL offense.

9.  On 26 July 1972, after consulting with his defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, 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 acknowledged that he understood that he could receive an undesirable discharge and that he might be deprived of all benefits as a result of such a discharge.  



10.  He also elected to submit a statement in his own behalf whereas he stated, in effect, that when he came into the Army he thought he would like it but it was hard on both him and his wife and his wife lost their first child while he was in Vietnam.  He went on to state that his parents drank a lot and were of no help to his wife and that his parents and his wife needed him at home.  He further stated that he could not stand the pressures of the Army and his family problems and that he would go AWOL again if he were retained.

11.  The appropriate authority (a major general) approved the applicant’s request for discharge and directed that he be reduced to the pay grade of E-1 and furnished with an Undesirable Discharge Certificate. 

12.  Accordingly, he was undesirably discharged on 31 October 1972, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 years and 11 days of total active service and had 242 days of lost time due to AWOL.

13.  A review of the applicant’s official records fails to show any indication that the applicant sought the assistance of his chain of command or that he ever requested either a hardship discharge or compassionate reassignment.

14.  On 29 August 1983, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he should have received an honorable discharge because he served 48 months without incident and because he had lost a son while in Vietnam.  The ADRB determined that the applicant’s discharge was both proper and equitable and voted unanimously to deny his request on 20 January 1984.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 indicate that they are submitting the request of their own free will, without coercion from anyone and that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  At the time an undesirable discharge was 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 courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he chose to voluntarily request a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

4.  The applicant's contentions and supporting documents have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his extensive absence and the fact that he was apprehended, which is indicative that he did not intend to return to military control on his own.  Additionally, there is no indication that he sought assistance from his chain of command to resolve his problems at the time.  Accordingly, his service simply does not rise to the level of a discharge upgrade.

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

__XXX __  __XXX__  __XXX__   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.



      ___        XXX                ___
                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)                                         AR20080007709



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ABCMR Record of Proceedings (cont)                                         AR20080007709



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