IN THE CASE OF:
BOARD DATE: 20 May 2010
DOCKET NUMBER: AR20090019164
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 be upgraded to a general discharge.
2. The applicant states:
* he knows he made a mistake
* he was never in trouble before or after his discharge
* he served his country well and was proud to serve
* he served in Vietnam for 1 and 1/2 years
* when he got back from Vietnam he had some problems he could not deal with
* he got married and his wife had a baby by another man
* he started drinking a lot and things got out of hand and he could not deal with it
* he went absent without leave (AWOL) but he did not try to hide or run away
* his platoon sergeant came and took him back to his unit
* he was a military policeman
* after his discharge he got a job as a truck driver and has been employed as a truck driver ever since
* he is sorry
3. The applicant provides:
* discharge orders
* citation, award certificate and orders for the Bronze Star Medal
* Honorable Discharge Certificate
* award certificate for the Air Medal
* Certificate of Appreciation
* Driver of the Month letter
* Vietnam Combat Certificate
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 applicants 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 applicants 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 7 June 1968 for a period of
3 years. He served as a military policeman in Vietnam from 5 November 1968 to 10 April 1970. On 18 August 1970, he was honorably discharged for immediate reenlistment. He reenlisted on 19 August 1970 for a period of 3 years.
3. On 14 September 1970, nonjudicial punishment was imposed against the applicant for absenting himself from his place of duty (funeral detail practice). His punishment consisted of a reduction to E-4 (suspended) and a forfeiture of pay. On 3 December 1970, the suspended portion of the punishment was vacated.
4. The applicant went AWOL on 15 June 1972 and returned to military control on 16 July 1973. He went AWOL again on 30 July 1973 and returned to military control on 12 October 1973. On 20 November 1973, charges were preferred against the applicant for the AWOL periods. Trial by summary court-martial was recommended.
5. On 20 November 1973, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service. He indicated in his request that he understood that 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 Veterans Administration, 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; however, his statement is not available.
6. On 29 November 1973, the separation authority approved the applicants request for discharge and directed that he be furnished an undesirable discharge.
7. Accordingly, the applicant was discharged with an undesirable discharge on
7 December 1973 under the provisions of Army Regulation 635-200, chapter
10, for the good of the service. He had served a total of 4 years and 29 days of creditable active service with 473 days of time lost.
8. There is no evidence of records which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.
9. 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.
10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.
11. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. Marital problems are not normally grounds for upgrading a discharge. There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to going AWOL.
2. 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.
3. The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.
4. The applicant's record of service during his last enlistment included one nonjudicial punishment and 473 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant's record of service is insufficiently meritorious to warrant an upgraded 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.
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