IN THE CASE OF:	  

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090012119 


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, in effect, that his discharge was inequitable because it was based on a series of events in which his command provided no support or leniency.  He indicates that after serving in Vietnam he returned home to his wife and daughter and before leaving for his new duty station his wife told him that she wanted to end their marriage.  He contends that he requested emergency leave to sort things out with his wife; however, his request was denied so he went absent without leave (AWOL).  He claims that he returned to his unit and was immediately singled out and harassed for going AWOL.  He tried to stay positive; however, with the ongoing harassment he went AWOL again.  He goes on to state that he returned to his unit and received an Article 15, that he was transferred to another unit in the same battalion.  The harassment continued and he continued his pattern of behavior.      

3.  The applicant states that he was the last year of his enlistment and despite his AWOL periods his unit still tried to encourage him to reenlist.  He indicates that he decided not to reenlist and it was then that he was brought up on charges for being AWOL and threatened with a court-martial.  He claims that he was instructed that if he accepted a discharge for the good of the service he would avoid the court-martial and be given a general discharge.  When he returned home and received his discharge papers in the mail he found out he was given an undesirable discharge.  He contends that had he known what was going to transpire he would not have accepted the discharge and would have fought it at a court-martial.  He points out that he had a very good service record until his Fort Hood assignment and his family problems arose.  He knows he should have handled things differently, but he was young and naïve.  He also believes his chain of command could have handled things differently as well.  He believes today a Soldier would receive better support and counseling.   

4.  The applicant provides a statement he made in 1971, a copy of his DA Form 20 (Enlisted Qualification Record), a DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ), service personnel records, a request for discharge for the good of the service, and a copy of his DD Form 214 (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 was born on 17 November 1948.  He enlisted in the Regular Army on 26 June 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 51B (carpenter) and later MOS 12C (bridge specialist).  He served in Vietnam from 21 November 1968 to 20 November 1969.      

3.  Records show the applicant went AWOL from 14-15 February 1970, 
11-17 March 1970, 19-22 March 1970, and18-23 May 1970.  

4.  On 18 June 1970, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and using disrespectful language.  His punishment consisted of a reduction to E-3, a forfeiture of pay, restriction, and extra duty.

5.  On 14 October 1970, nonjudicial punishment was imposed against the applicant for being AWOL from 17 September to 12 October 1970.  His punishment consisted of a reduction to E-2, a forfeiture of pay, restriction, and extra duty.
6.  On 21 August 1970, a bar to reenlistment was imposed against the applicant.

7.  The available records do not contain a charge sheet.  However, records show the applicant went AWOL on 30 December 1970 and he was apprehended by civil authorities on 2 June 1971 and returned to military control. 

8.  Records show the applicant went AWOL on 18 July 1971 and returned to military control on 22 July 1971.

9.  On an unknown date, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs (DVA) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that he went AWOL due to marital problems, personal problems, and harassment from his unit. 

10.  On 19 July 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

11.  Accordingly, the applicant was discharged with an undesirable discharge on 
22 July 1971 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 2 years, 6 months, and 
6 days of creditable active service with 197 days of lost time due to being AWOL.  

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

13.  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.  At the time, an undesirable discharge was normally considered appropriate. 

14.  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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed his training.  

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain in a way to resolve his problems within established Army procedures prior to going AWOL.

3.  The applicant's contention that he was instructed to accept the discharge for the good of the service and he would avoid the court-martial action and be given a general discharge was considered.  However, his voluntary request for discharge for the good of the service indicates that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  

4.  The applicant’s record of service included two nonjudicial punishments, a bar to reenlistment, and 197 days of lost time.  As a result, his record of service was not satisfactory.  Regrettably, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.









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)                                         AR20090012119





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ABCMR Record of Proceedings (cont)                                         AR20090012119



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