IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090018017 


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 his undesirable discharge (UD) be upgraded.

2.  The applicant states his discharge is unjust because he was not given a fair opportunity to receive help.  At the time of the incident he was dealing with serious personal and health issues that were not considered when the consequences were decided upon.  He was not afforded any type of assistance with his personal problem on issues.  If he was given the opportunity at that time he would have gratefully accepted it.

3.  The applicant provides no supporting documentation.

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 the Regular Army on 31 August 1971, completed training, and was awarded the military occupational specialty 76A (Supply Clerk). 

3.  He served in Vietnam from 14 March 1972 through 25 September 1972 (6 months and 12 days).  

4.  On 15 March 1973, a bar to reenlistment was imposed.

5.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice as follows on:

   a.  10 January 1972, for failure to go to his place of duty and disobeying a lawful order;

   b.  17 February 1972, for being absent without leave (AWOL) from 7 to 10 February 1972;

   c.  1 June 1972, for failure to go to his place of duty on three occasions;

   d.  15 October 1972, for being AWOL from 10 to 16 October 1972;

   e.  18 January 1973, for being AWOL from 13 to 17 January 1973;

   f.  19 March 1973, for failure to go to his place of duty on three occasions

   g.  18 April 1973, for failure to go to his place of duty on two occasions and making a false official statement;

   h.  26 April 1973, for being AWOL from 19 to 23 April 1973 and breaking restriction;

   i.  15 October 1973, for being AWOL from 9 to 12 October 1973; and 

   j.  12 June 1974, for misconduct;

6.  On 26 June 1974, a special court-martial found the applicant guilty of AWOL from 5 through 31 March 1974.

7.  The applicant's DA Form 20 (Enlisted Qualification Record) also shows additional periods of AWOL from 12 to 14 November 1973, 3 to 11 December 1972, 5 to 30 March 1974, 30 July 1974 to 8 August 1974, 3 September 1974 to 24 October 1974, and a period of confinement from 11 to 19 December 1973.

8.  On 22 November 1974, it was administratively determined that the applicant's period of absence from 15 May 1973 to 19 July 1973 and 18 to 24 September 1973 were periods of AWOL.  

9.  On 13 November 1974, court-martial charges were preferred for his 30 July 1974 to 8 August 1974 and 3 September 1974 to 24 October 1974 periods of AWOL.

10.  On 22 November 1974, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UD Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

11.  On 4 December 1974, the general court-martial authority approved the discharge under Army Regulation 635-200, chapter 10 and directed the applicant be furnished a UD.

12.  The applicant was discharged on 13 December 1974 with a UD.  He had 2 years, 9 months, and 1 day of creditable service with 194 days of lost time.

13.  The available service medical records do not contain any reference to any serious or reoccurring health issues.

14.  On 6 January 1977, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge and did not deem it appropriate to change his narrative reason for discharge.  During this review, the applicant stated that a reason for his AWOL was the poor health of his mother.

15.  Army Regulation 635-200 sets forth the purpose and policies for enlisted personnel separations.  As in effect at that time, it provides the following, 

   a.  an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty; 

   b.  a Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or "actions under the UCMJ Art 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service"; 

   c.  a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge; 

   d.   a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct or in lieu of trial by court martial when the reason for separation is based upon a pattern of behavior that constitutes a significant departure from the conduct expected of Soldiers of the Army.  At the time the discharge was referred to as an undesirable discharge; and

   e.  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.

16.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his discharge is unjust because he was not given a fair opportunity to receive help.  At the time of the incident he was dealing with serious personal and health issues that were not considered when the consequences were decided upon.  He was not afforded any type of assistance with his personal problem on issues.  If he was given the opportunity at that time he would have gratefully accepted it.

2.  The record does not contain any reference to any complaints of any serious health issues and applicant does not specify what health "issues" he was dealing with or if they were personal or family problems.

3.  The applicant's misconduct spanned his entire period of service.  He received NJP on 10 occasions for misconduct to include but not limited to his 13 periods of AWOL as well as being found guilty of AWOL by a special court-martial.
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.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offenses for which he requested discharge and is appropriate for applicant's overall record of military service during his second enlistment.

6.  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

____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)                                         AR20090018017





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ABCMR Record of Proceedings (cont)                                         AR20090018017



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