IN THE CASE OF:	

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090016681 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he was absent without leave (AWOL) for one day only and that his punishment was too harsh.  He was young at the time and stressed out from being in combat in Vietnam.  He also states that he was serving in Vietnam when he was notified that his father was ill.  He was the oldest and the only son at the time, his mother did not drive, and his sister was too young.  He applied for a hardship discharge but was denied.  He returned home on a compassionate reassignment and took over the family business which was financially unstable at the time.  He took over the business and ran it since no one else was available to run it.  Then, one day an officer came in and told him to go back to Fort Sill, OK, and straighten everything out.  However, when he returned, he was given a choice between signing the papers and spending time in jail.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 19 January 1972, in support of his request.

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 born on 22 September 1950 and enlisted in the Regular Army at 19 years and 5 months of age for a period of 3 years on 12 March 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13A (Field Artilleryman). The highest rank/grade the applicant attained during his military service was specialist four/E-4.

3.  The applicant’s records further show he served in the Republic of Vietnam from on or about 22 September 1970 to on or about 19 March 1971.  His records also show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and one overseas service bar.

4.  On 16 June 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period on or about 14 June 1971 through on or about 15 June 1971.  His punishment consisted of a forfeiture of $50.00 pay, 14 days of restriction, and 14 days of extra duty.

5.  On 26 June 1971, the applicant departed his Fort Sill, OK, unit in an AWOL status.  He surrendered to his unit on 30 July 1971.  However, he again departed his unit in an AWOL status on 31 July 1971 and was subsequently dropped from the Army rolls on 17 August 1971.  He surrendered to military authorities on 24 September 1971. 

6.  On 25 September 1971, the applicant departed his unit in an AWOL status for a third time and was subsequently dropped from the Army rolls on the same date.  He remained in this status until he surrendered to his unit on 5 December 1971.  

7.  On 6 December 1971, court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ, for three specifications of being AWOL during the periods on or about 26 June 1971 through on or about 30 July 1971, on or about 31 July 1971 through on or about 24 September 1971, and on or about 25 September 1971 through on or about 5 December 1971.  
8.  On 21 December 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant indicated that he had not been subjected to coercion with respect to his request for discharge.  He also acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could expect to encounter substantial prejudice in civilian life, could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further elected to submit a statement in his own behalf wherein he described the illness of his father and the difficulties at home.

10.  On 28 and 29 December 1971, the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.

11.  On 14 January 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 19 January 1972, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year, 4 months, and 12 days of creditable active military service and had 180 days of lost time.

12.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 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 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.

14.  Army Regulation 635-200, paragraph 3-7a, 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.

15.  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.

16.  According to the Manual of Courts Martial, the maximum punishment for violating Article 86 under the UCMJ is as follows:  (a) For not more than 3 days, confinement for 1 month and forfeiture of two-thirds pay per month for 1 month; (b) For more than 3 days but not more than 30 days, confinement for 6 months and forfeiture of two-thirds pay per month for 6months; (c) For more than 30 days, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 1 year; and (d) For more than 30 days and terminated by apprehension, dishonorable discharge, forfeiture of all pay and allowances, and confinement for 18 months. 

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was 19 years and 5 months of age at the time he enlisted and over 20 years of age at the time he committed his AWOL offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his repeated instances of AWOL were the result of his age.
2.  The applicant's service in Vietnam; the difficulties/challenges with respect to his father, mother, and sister; and the need to take care of the family business at the time are noted.  However, there were many other avenues to resolve those issues had the applicant elected to use them. 

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ 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.  The applicant consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing, request discharge from the 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.

4.  There is no evidence in the available records, nor did the applicant provide documentation, that would warrant an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.

5.  Based on his 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, the applicant is not entitled to either an honorable or a general 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.



      _______ _   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)                                         AR20090016681



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ABCMR Record of Proceedings (cont)                                         AR20090016681



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