IN THE CASE OF:	  

		BOARD DATE:	        30 December 2008 

		DOCKET NUMBER:  AR20080011417 


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 the reason and character of his discharge be upgraded.

2.  The applicant states he is proud of his country and wants a military flag on his grave.  He served in Vietnam and is ashamed of his discharge.  He begs for something other than "for the good of the service."

3.  The applicant provides a copy of 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 entered active duty on 27 March 1969, completed training, and was awarded the military occupational specialty 35K (Field Wireman).

3.  The applicant served in Germany from 27 March 1969 through 7 April 1969 and in Vietnam from 15 July 1969 through 12 July 1970.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows:

	a.  on 4 November 1969, for failure to obey a lawful order; and

	b.  on 3 September 1970, for being absent without leave (AWOL) from 19 August 1970 through 31 August 1970.

5.  On 22 July 1971, a special court-martial found the applicant guilty of AWOL for the period 13 May 1971 through 11 June 1971.

6.  The applicant was AWOL from 26 July 1971 through 6 November 1971.  Upon return to military control, court-martial charges were preferred for this period of AWOL.

7.  On 17 November 1971, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if the request was accepted that he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

8.  On 6 January 1972, the discharge authority directed the applicant be reduced to the lowest enlisted grade (E-1) and be discharged for the good of the service in lieu of trial by court-martial and be issued an Undesirable Discharge certificate.

9.  His record shows he was AWOL on four occasions with two periods of confinement for a total of 247 days of lost time.



10.  The applicant was discharged on 25 January 1972 under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He had a total of 2 years, 7 months, and 19 days of creditable service with 247 days of lost time.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

12.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

13.  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.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  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)                                         AR20080011417



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011417



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1