IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090020899 


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 undesirable discharge to an honorable discharge so he may be able to receive benefits.

2.  The applicant states:

* he was told if he reenlisted he could get a different military occupational specialty (MOS)
* he "had the notion" he would not be going back into combat
* when he returned from leave he was told he was going back to Vietnam
* he was young and he made some bad choices; however, at that time he was scared
* he did not understand that based on the type of discharge he received what it would do to him as he got older and tried to obtain benefits
* he was hoping to make a career out of the military but after he felt he was lied to by the Army his bad choices led to him to being separated from the Army with an undesirable discharge
* he was told by a Judge Advocate General (JAG) officer it was the easiest way for him to go and that a lot of veterans were taking that type of discharge
* he was told he should try to have his discharge upgraded based on the circumstances of his case
* He wants his discharge upgraded for  his children and grandchildren



3.  The applicant provides a statement from a claims consultant of the Veterans of Foreign Wars (VFW) of the United States National Claims Service, Kansas City, MO, dated 17 November 2009, forwarding his application to the Army Review Board Agency.

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 Pennsylvania Army National Guard on 9 November 1969.  He was ordered to active duty for training on 6 February 1970 and he completed training as an infantry indirect fire crewman.

3.  On 31 August 1970, the applicant enlisted in the Regular Army (RA) for 3 years.  He was transferred to Vietnam on 27 October 1970.  He was honorably discharged on 21 June 1971, for the purpose of immediate reenlistment.  He reenlisted in the RA for 3 years on 22 June 1971.

4.  The DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)) is not in the applicant's available records.  However, the records show that nonjudicial punishment (NJP) was imposed against him on
2 September 1971 for being absent without leave (AWOL) from 25 August 1971 through 30 August 1971.

5.  The applicant was convicted by a special court-martial on 12 November 1971 of being absent from his unit without authority from 10 September 1971 through 14 September 1971 and from 15 September 1971 through 7 October 1971.  He was further convicted of escaping from the lawful custody of an officer.  He was sentenced to a reduction in pay grade and a forfeiture of pay.

6.  The available records show that the applicant returned to the continental United States on 8 December 1971.

7.  The evidence of record shows that charges were preferred against the applicant on 1 March 1973.  However, the charge sheet is not in the applicant's available records.

8.  On 13 March 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 - in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged he understood the following:

* if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State law
* he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

9.  The appropriate authority approved the request for discharge on 2 April 1973. Accordingly, on 13 April 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had completed 1 year, 11 months, and 1 day of total active service.

10.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was AWOL on the following dates:

* 25 August 1971 through 30 August 1971
* 10 September 1971 through 13 September 1971
* 15 September 1971 through 6 October 1971
* 23 December 1971 through 25 February 1973

11.  His DD Form 214 shows he had approximately 463 days of time lost due to AWOL and that he was issued an Undesirable Discharge Certificate.

12.  On 24 January 1977, the Army Discharge Review Board (ADRB) denied the applicant's appeal for an upgrade of his discharge.


13.  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. 

14.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b of Army Regulation 635-200 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.  The applicant was discharged in accordance with applicable laws and regulations in effect at that time.

2.  The type of discharge directed was appropriate consideration all the facts of his case.

3.  His contentions have been noted; however, they are not sufficiently mitigating to warrant the relief requested.  His youth and/or immaturity does not justify what appears to have been numerous acts of indiscipline and his records show he acknowledged that he understood the affects of a less than fully honorable discharge at the time he submitted his voluntary request for discharge for the good of the service - in lieu of trial by court-martial.

4.  He had approximately 463 days of lost time due to AWOL.  He was convicted by a special court- martial and he had NJP imposed against him as a result of his acts of misconduct.  Considering the nature of his offenses, the undesirable discharge he was issued appropriately reflects his overall record of service.

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)                                         AR20090020899



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020899



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1