IN THE CASE OF:	  

		BOARD DATE:	        02 OCTOBER 2008

		DOCKET NUMBER:  AR20080012514 


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 general discharge. 

2.  The applicant states that he served honorably in Germany and Vietnam and he made a mistake when he returned from Southeast Asia and was stationed at Fort Carson, Colorado.  Returning back from Vietnam and being placed in a training unit affected him in a way that is hard to explain.  He felt disoriented and out of place returning from a war and being placed in a training unit.  He goes on to state that he requested to be returned to Vietnam and his request was denied. He found it hard to think and control his emotions and finally decided that he must leave.  He continues by stating that he did not know what Post-Traumatic Stress Disorder (PTSD) was at the time; however, he believes that he was suffering from it.  He regrets that he went absent without leave (AWOL) but felt that it was the only way he could survive.  He was young and had very little support from anyone because his parents were both deceased and he felt he had nowhere to turn.  He also states that he would like his discharge upgraded because of his honorable duty in Vietnam.

3.  The applicant provides no additional documents 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 enlisted in Memphis, Tennessee on 13 November 1970 for a period of 3 years and training as a wheel vehicle mechanic.  He successfully completed his training at Fort Polk, Louisiana and was transferred to Germany on 20 April 1971 for assignment as a wheel vehicle mechanic with the United States Army Combat Equipment Group - Europe.  He was advanced to the pay grade of E-3 on 9 June 1971.

3.  He departed Germany on 17 August 1971 for assignment to Vietnam.  He was initially assigned to a field artillery battery and was subsequently assigned to a maintenance company and then to a transportation company.  He was advanced to the pay grade of E-4 on 7 April 1972.  

4.  He departed Vietnam on 15 June 1972 and was transferred to Fort Carson, Colorado.  He arrived at Fort Carson on 27 July 1972 and was assigned to an armor company.

5.  The applicant went AWOL on 21 August 1972 and remained absent until he was returned to military control at Fort Campbell, Kentucky on 3 December 1972.

6.  He was convicted by a summary court-martial on 5 January 1973 of being AWOL from 21 August to 2 December 1972.  He was sentenced to hard labor without confinement for 30 days (suspended for 90 days), a reduction to the pay grade of E-3, and a forfeiture of pay.  

7.  The applicant again went AWOL on 10 January 1973 and remained absent in desertion until he was apprehended by Federal Bureau of Investigations officials on 31 August 1973 and was returned to military control at Fort Leonard Wood, Missouri, where charges were preferred against him.

8.  On 12 September 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request he stated that he understood that he may be discharged with an 

undesirable discharge, that he understood the prejudice he may be subjected to as a result of such a discharge, that he understood that he would be deprived of many or all benefits and that he was not subjected to coercion by anyone to submit such a request.  He also elected to submit a statement in his own behalf whereas he asserted that he could no longer cope with the Army because since his return from Vietnam, it seemed that everything he did was wrong.  He went on to state that he could not and would not want to serve anymore and if he had to run from the Army for the rest of his life he would do so because he no longer believed in the Army and could not be encouraged to serve further.  He also stated that he had joined the Army after his parents had died, hoping to make a home for himself; however, he realizes that was a mistake.  He continued by stating that he had matured over the last couple of years and now just wanted to make a life for himself.

9.  The appropriate authority (a major general) approved his request on 2 October 1973 and directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged with an undesirable discharge, characterized as under other than honorable conditions on 5 October 1973, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 1 year, 11 months, and
21 days of total active service and had 336 days of lost time due to AWOL.   

11.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

12.  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.  An undesirable discharge is normally considered appropriate.  

13.  Paragraph 3-7b also 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 courtmartial, was administratively correct and in conformance with applicable regulations.  There were no violations of any of the applicant’s rights.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service to avoid a punitive discharge and a felony conviction on his records.

3. The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service and the extensive length of his absences.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  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)                                         AR20080012514



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ABCMR Record of Proceedings (cont)                                         AR20080012514



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