IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012707 


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 (UD) be upgraded.

2.  The applicant states he was discharged with just 2 months left in his enlistment.  He admits he did wrong, but states he also volunteered to go to Vietnam several times.  He adds he did community service as he was told, and his discharge should have been changed because he needs to receive Department of Veterans Affairs (DVA) benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 did not enlist, he was inducted into the Army of the United States for 2 years on 27 February 1968.  Following Basic Combat Training and Advanced Individual Training at Fort Polk, LA, he was awarded military occupational specialty (MOS) 94B (Cook) and ordered to report to Fort Ord, CA.

3.  The applicant amassed 1,209 days of lost time during eight periods of being AWOL.  He was convicted of being AWOL by two special courts-martial, on 27 December 1968 and 18 July 1969, and by one general court-martial on 2 November 1970.

4.  While awaiting appellate review of his general court-martial conviction, the applicant went AWOL on 2 August 1971 and remained absent until 16 March 1973.  Court-martial charges were preferred against him on 28 March 1973.  On 26 March 1973, he consulted with counsel and voluntarily requested 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 so doing, he acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct discharge, and that he did not desire further rehabilitation, nor had he any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

5.  On 11 April 1973, the approving authority approved the applicant’s request for discharge and directed he be separated with a UD.  On 11 May 1973, the applicant was discharged with a UD under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His DD Form 214 shows he had completed 1 year, 10 months and 22 days of creditable service over a 
5-year, 2-month, and 15-day period of time.

6.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board’s 15-year statute of limitation.

7.  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.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade.

2.  The applicant stated he enlisted and served to within 2 months of his discharge date.  The applicant did not enlist, he was inducted.  He had multiple periods of AWOL totaling 1,209 days of lost time and, while he did serve almost 
2 years, he accomplished this over a 5-year period because of his AWOLs.

3.  The applicant had three court-martial convictions, but still went AWOL one final time from 2 August 1971 through 15 March 1973.  His request for a chapter 10 discharge after appropriate and proper consultation with a military lawyer tends to show he wished to avoid trial by court-martial and the punitive discharge that he might have received. 

4.  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.

5.  There is no record of the applicant having applied for either a clemency discharge under the provisions of Presidential Proclamation 4313, dated 16 September 1974, or the Department of Defense Discharge Review program (Special) in 1978.  Likewise, there is no record he ever applied to the ADRB for a discharge upgrade.

6.  The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.  Discharges are not upgraded merely to qualify an applicant for benefits/programs that may be offered by other agencies.

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.




      _______ _  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)                                         AR20080012707



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ABCMR Record of Proceedings (cont)                                         AR20080012707



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