IN THE CASE OF:	  

		BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090020648 


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 he completed his 12-month tour of duty in Vietnam and was supposed to be given 30 days of leave, but he was only given 5 days of leave.

	a.  He states that during those 5 days of leave, his mother had to have open-heart surgery.  He called the officer who had authorized his leave and he also spoke to the Chaplain and Red Cross officials at the hospital to explain his situation.  He explains that he was her only child and had to care for his mother until she recovered.  He adds it took about 3 weeks for his mother to recover.

	b.  He states when he returned to his unit he was told that he could take 18 months with half his pay or sign his papers to get out in 10 days.  He adds that with the stress from the difficult time he was going through with his mother, he signed his release papers.  He hopes the Board will upgrade his discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 for a period of 3 years on 11 January 1968.  Upon completion of training he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in Vietnam from 3 August 1968 through 2 August 1969.

4.  On 21 November 1969, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 2 September 1969 to 29 October 1969.  His punishment consisted of reduction to private (E-2), forfeiture of $50.00 per month for 2 months, 30 days of extra duty, and 30 days of restriction.

5.  The applicant was assigned to Headquarters and Headquarters Troop (HHT), 3rd Squadron, 6th Armored Cavalry Regiment (ACR), Fort George G. Meade, MD, effective 15 May 1970.

6.  A DD Form 458 (Charge Sheet), dated 24 March 1971, shows charges were preferred against the applicant of being AWOL from his unit from 1 September 1970 to 15 March 1971.  This document also shows the applicant was assigned to HHT, 3rd Squadron, 6th ACR, Fort George G. Meade, MD, and attached to Valley Forge General Hospital, Phoenixville, PA.

7.  The applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).

	a.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, and that he may be deprived of many or all Army benefits.  It also states he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It further states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.

	b.  The applicant elected not to submit statements in his own behalf.

8.  The applicant's military personnel records do not contain a complete copy of his administrative separation packet.

9.  Headquarters, Fort George G. Meade, MD, Special Orders Number 71, dated 5 April 1971, discharged the applicant under the authority of Army Regulation 635-200, chapter 10, effective 7 April 1971.

10.  The applicant's DD Form 214 shows he was discharged on 7 April 1971 in accordance with the provisions of Army Regulation 635-200, chapter 10, and his service was characterized as under other than honorable conditions.  At the time he had completed 2 years, 8 months, and 12 days of net active service during the period of service under review.  Item 30 (Remarks) shows he had 196 days lost under Title 10, U.S. Code, section 972, from 1 September 1970 through 14 March 1971.

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

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides 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.

	a.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  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 contends his under other than honorable conditions discharge should be upgraded because he was supposed to get 30 days of leave when he returned from Vietnam, but was only authorized 5 days of leave, which was insufficient time to care for his mother who had been hospitalized.

2.  Records show the applicant departed Vietnam on 2 August 1969 in a leave status en route to his next duty station.  Records also show he received nonjudicial punishment for being AWOL from 2 September 1969 to 29 October 1969.  Thus, the evidence indicates he was in an authorized leave status for 30 days (through 1 September 1969).  Therefore, the evidence of record refutes his contention that he was not authorized 30 days of leave upon his return from Vietnam.

3.  Records show the charges that led to the applicant's voluntary request for discharge were based on his period of AWOL from 1 September 1970 to 15 March 1971.  This period of AWOL occurred more than 1 year after the applicant's return from Vietnam.

4.  The applicant's 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 voluntary and administratively correct.  In the absence of evidence to the contrary, it is concluded that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge outweighs his overall record during the period of service under review.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

5.  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)                                         AR20090020648



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ABCMR Record of Proceedings (cont)                                         AR20090020648



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