BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100009405 


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 to a general under honorable conditions discharge.

2.  The applicant states that during his military service he got married and that he and his spouse already had one child and they were expecting a second.  His wife then became sick with cancer and ultimately died.  He believes he had an obligation to his wife as well as an obligation to the Army.  Nevertheless, he was young and made some poor choices.  Unlike others who avoided service in Vietnam, he served and had a good record until his wife became sick.

3.  The applicant provides 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's complete service records are not available for review with this case.  There are several discrepancies in his service record and he appears to have been discharged based on temporary records.

3.  His DD Form 4 (Enlistment Contract - Armed Forces of the United States) shows he was born on 6 August 1952.

4.  He enlisted in the Regular Army at 17 years of age for a period of 3 years on 29 August 1969.  He appears to have completed basic combat training at Fort Polk, LA, and advanced individual training at Fort Sam Houston, TX, but it is unclear if he was awarded a military occupational specialty.

5.  His records show the highest rank/grade he attained during his military service was private first class/E-3 and that he was awarded the National Defense Service Medal.

6.  His records indicate he was placed on orders for an overseas assignment, but he failed to report to the Overseas Replacement Station at Fort Dix, NJ.  Accordingly, on 10 July 1970, he was reported as absent without leave (AWOL) and on 9 August 1970 he was dropped from the Army rolls.  He was apprehended and returned to military control on 25 May 1971.

7.  On 23 June 1971, he departed his unit in an AWOL status and was subsequently dropped from the Army rolls.  He was again apprehended and returned to military control on 11 September 1971.

8.  On 9 December 1971, he again departed his unit in an AWOL status and was subsequently dropped from the Army rolls.  He returned to military control at Fort Devens, MA, on 12 August 1972.  It is unclear if he was apprehended or if he surrendered; nevertheless, he was placed in pre-trial confinement at Fort Dix.

9.  On 22 August 1972, court-martial charges were preferred against him for three specifications of being AWOL as follows:

* on or about 10 July 1970 to on or about 26 May 1971
* on or about 23 June 1971 to on or about 12 September 1971
* on or about 9 December 1971 to on or about 12 August 1972

10.  On 5 September 1972, he 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 Uniform Code of Military Justice, 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).

11.  In his request for discharge, he indicated he was making this request of his own free will and had not been subjected to any coercion whatsoever.  He also acknowledged he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if the discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  On 27 September 1972, his immediate and intermediate commanders recommended approval of his discharge with an Undesirable Discharge Certificate and remarked that he was pending a court-martial punishable by a bad conduct discharge or a dishonorable discharge.  He had no motivation for continued service and would not have responded to counseling or rehabilitation.

13.  On 27 September 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 that he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  On 4 December 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 trial by court-martial with a character of service of under other than honorable conditions. 
This form further confirms he completed a total of 2 years and 6 months of creditable active military service with 648 days of lost time.

14.  On 23 March 1992, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general under honorable conditions discharge.

2.  The evidence of record shows he was 17 years of age at the time he enlisted and 19 years of age at the time he committed his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in his records and he did not provide substantiating evidence that shows his extensive history of AWOL was the result of his age.

3.  The evidence of record shows he was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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.  He 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, his discharge accurately reflects his overall record of service.

4.  There is no evidence in his records that shows he addressed the issue of his ill wife with his chain of command or other support channels.  Additionally, there is no evidence in the available records and he did not provide documentation that would warrant an upgrade of his discharge.

5.  Based on his record of indiscipline, his 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 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)                                         AR20100009405



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)