IN THE CASE OF:	  

		BOARD DATE:	       23 December 2008

		DOCKET NUMBER:  AR20080017107 


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 the character of his 1972 discharge be upgraded.

2.  The applicant states his father was terminally ill and as an only child he departed AWOL (absent without leave) to be with him.  He states he originally filed to have his discharge upgraded in 1976 but never received a response.

3.  The applicant provides no evidence 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's records show he was inducted and enter active duty on 
28 November 1967.  His father resided in North Carolina at that time.  

3.  The applicant was trained as an infantryman and in June 1968 was assigned to an infantry unit in Vietnam.  By January 1969 he had been promoted to pay grade E-4 and in March 1969 he was reassigned to another infantry unit in Korea.

4.  In May 1969 he was discharged for the purpose of immediate reenlistment.  Although his 1969 separation document reflects entitlement to a Bronze Star Medal and Purple Heart, there were no documents in available records confirming either award and the 1969 separation document notes he "enlisted with temporary records."

5.  In January 1970 he was punished under Article 15 of the Uniform Code of Military Justice for AWOL between 19 January and 20 January 1970.  The record of proceedings indicates he was serving in pay grade E-5 at the time.  His punishment included reduction to pay grade E-4, which was suspended until March 1970.  

6.  On 7 June 1970 the applicant was discharged for the purpose of reenlisting again.  He was assigned to Fort Carson, Colorado at the time.  The separation document shows he was serving in pay grade E-4 at the time of the reenlistment.

7.  In July 1970 the applicant was punished under Article 15 of the UCMJ for AWOL between 18 and 25 July 1970 after failing to report to the Overseas Replacement Station at Oakland Army Base.  In the fall of 1970 the applicant was convicted by a summary court-martial of AWOL between 16 August 1970 and 5 September 1970.  

8.  A 5 January 1971 statement from the applicant's commanding officer suggests the applicant was authorized leave over Christmas 1970 to visit his father who was in a hospital in North Carolina.  The applicant failed to return from leave and on 1 January 1971 was placed in an AWOL status and dropped from the rolls of the Army on 31 January 1971.

9.  A November 1971 CID (Criminal Investigation Division) report notes that on 17 November 1971 the applicant was stopped by civilian authorities in Philadelphia, Pennsylvania on suspicion of AWOL and found to be in possession 



of heroin.  He was arraigned and scheduled for trial on 10 January 1972.  He subsequently posted bail before being released to military authorities on 
27 November 1971.

10.  On 8 December 1971 the applicant was charged with AWOL commencing on 1 January 1971 and ending on 20 November 1971.  On 9 December 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, and the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

11.  The applicant indicated in his request for discharge that he understood that if his discharge request was approved, that he could be discharged under other than honorable conditions and furnished an under other than honorable conditions discharge certificate.  He further acknowledged that he understood he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs], that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

12.  In a self-authored statement, included with the applicant's request for discharge, he indicated he had not been home in a while as a result of tours of duty in Vietnam and Korea.  He stated after coming home on leave after being notified that his grandmother had died, he found his father was quite ill and in the hospital.  He states he left his father expecting other relatives to care for him and shortly after arriving at Fort Carson, Colorado discovered that he was being reassigned back to Vietnam.  He indicated he went on leave again, established a plan for his aunt to care for his father and subsequently found out his aunt could not care for his father and so remained at home.  He states he eventually got married, had two children and when he returned to duty found out his father needed an operation so he went home again, remaining absent until he was captured.  He states that since returning to the military his baby died and indicated he could write a book about how bad his life had been since being in the Army.  

13.  The applicant's legal counsel recommended issuance of a General or Honorable Discharge based on the applicant's receipt of the Bronze Star Medal 



and Purple Heart.  However, the applicant's commander noted that a thorough search of the applicant's file failed to reveal those awards and recommended separation under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) and issuance of an Undesirable Discharge Certificate.

14.  The separation authority approved the applicant’s request for discharge for the good of the service and directed that he receive an under other than honorable conditions discharge in accordance with chapter 10 of Army Regulation 635-200.  The applicant was reduced to the lowest enlisted grade of private/pay grade E-1 and discharged accordingly on 5 January 1972.  He had approximately 3 years and 1 month of active Federal service and more than 300 days of lost time.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  Army Regulation 635-200 provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  Army Regulation 635-200 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 request that the character of his discharge be upgraded was carefully considered and determined to be without merit.

2.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.

3.  The applicant's military service records show that he was counseled regarding separation under the provisions of chapter 10 of Army Regulation 635-200 and the possible negative effects of this discharge.  There is no evidence that he indicated at that time that this action was in error or unjust, or that his admission of guilt was false.

4.  The applicant states in his application that his AWOL should be excused because he was tending to his ill father.  Other than his own contention, there is no evidence which confirms that contention and no indication that he sought the assistance of members of his chain of command to resolve his situation within the guidelines of good military discipline.  The applicant's administrative separation was accomplished in compliance with applicable regulatory guidance with no indication of procedural errors that would jeopardize his rights.

5.  Inasmuch as the applicant was discharged based on his own admission of guilt, the reason and authority for discharge is correct as currently constituted.  Therefore, based on the available records, there is no basis to grant the relief requested.

6.  The applicant's military service records show that he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  After consulting with defense counsel, the applicant voluntarily requested discharge from the United States Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

7.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

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)                                         AR20080017107



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ABCMR Record of Proceedings (cont)                                         AR20080017107



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