IN THE CASE OF:	  

		BOARD DATE:	        31 July 2008

		DOCKET NUMBER:  AR20080008640 


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 discharge be upgraded to a general discharge.

2.  The applicant states that he believes he was unjustly charged in an accident with a military vehicle when he was under orders not to stop due to snipers in the area.  His difficulty with authority was youthful ignorance.  He has maintained solid employment for over 15 years as a truck driver.  He has cancer and would like to use the Department of Veterans Affairs health care system.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 17 August 1950.  He enlisted in the Regular Army on 1 October 1968.  He completed basic combat training.  

3.  On 25 February 1969, while in advanced individual training (AIT), the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 2 February to on or about 18 February 1969.

4.  The applicant completed AIT (with conduct and efficiency ratings of “fair”) and was awarded military occupational specialty 12A (Pioneer).

5.  The applicant arrived in Vietnam on 12 May 1969.

6.  On 25 May 1969, the applicant accepted NJP under Article 15, UCMJ, for, on or about 18 May 1969, absenting himself from his place of duty, to wit:  Reliable Academy.  

7.  On 10 November 1969, the applicant accepted NJP under Article 15, UCMJ, for two specifications of disobeying a lawful order.

8.  On 5 March 1970, the applicant accepted NJP under Article 15, UCMJ, for violating a lawful general regulation by following too closely behind another vehicle for road conditions, thereby hitting said vehicle and causing damage to his vehicle.

9.  The applicant departed Vietnam on or about 9 April 1970.

10.  On 13 January 1971, the applicant was convicted by a special court-martial of being AWOL from on or about 13 August to on or about 5 October 1970 and from on or about 15 October to on or about 26 October 1970.  His approved sentence was to forfeit $90.00 pay per month for 1 month and to be reduced to pay grade E-2.  

11.  On 15 April 1971, court-martial charges were preferred against the applicant for being AWOL from on or about 1 March to on or about 7 April 1971.

12.  On 20 May 1971, court-martial charges were preferred against the applicant for being AWOL from on or about 16 April to on or about 18 May 1971 and for, on or about 16 April 1971, after being placed in arrest, breaking said arrest.



13.  On 9 June 1971, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He indicated that he had not been subjected to coercion with respect to his request and that he had been advised of the implications that were attached to it.  He was advised of the effects of an undesirable and that he might be deprived of many or all Army and Department of Veterans Affairs benefits.  

14.  The applicant submitted a statement in his own behalf.  He stated that he did not have problems with basic training probably due to the fact he was on profile for a bad right knee for most of that training period.  He went AWOL during AIT because he believed training in AIT was unfair.  He was charged with another AWOL soon after arriving in Vietnam, which he believed was very unfair.  After about 6 months, he was transferred to Long Binh, where he was involved in a truck accident for which he was given an Article 15.  When he was assigned to Fort Carson, CO, he was given a truck that had had no maintenance for months. It was hard to fix that type of vehicle with no training.  A lot of little things built up, so the only way he saw (out) was going AWOL.  He turned himself in at Fort Devens, MA.  He wanted a 3-day pass to see his brother before his brother left for Vietnam.  His pass was disapproved, so he left again.  He was court-martialed when he returned, and about 2 months later he went AWOL once more.  He realized that he might be losing many of his benefits, but he just did not think that he could make it for the rest of his tour in the service.

15.  On 24 June 1971, the applicant completed a separation physical and was found qualified for separation.

16.  On 8 July 1971, the appropriate authority approved the applicant’s request and directed he receive an undesirable discharge.

17.  On 14 July 1971, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with an undesirable discharge and a characterization of service of under other than honorable conditions.  He had completed 2 years, 4 months, and 5 days of creditable active service and had 159 days of lost time.

18.  On 18 April 1983, the Army Discharge Review Board denied the applicant’s request for an upgraded discharge.

19.  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 request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  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.

20.  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 argument that his difficulty with authority was youthful ignorance does not have merit.  He completed basic combat training (even if not a lot of the physical aspects of the training) and AIT.  He should have known what the Army’s standards of conduct were and, after receiving his first Article 15, should have known that there would be consequences for misconduct.  

3.  The applicant’s post-service good conduct is commendable, and his current health situation is unfortunate; however, those factors do not warrant granting the relief requested.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  ____xx__  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.



      ______________________
               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)                                         AR20080008640



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ABCMR Record of Proceedings (cont)                                         AR20080008640



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