IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100009588 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* He has two discharges, one honorable and one undesirable
* When he was sent to Vietnam he lost respect for the military
* He was 19 years old and could take a life, it was the way of war
* He was wounded in Vietnam and when he was released from the hospital he reenlisted for a change of military occupational specialty (MOS) and he was granted 30 days of leave
* When he returned stateside he was hated for being in the military
* The military became the enemy and he lost respect for himself and everything else
* He refused to return to Vietnam and went absent without leave (AWOL)
* He did not think what his actions would bring later in his life
* He was totally mixed up at that time
* He is truly sorry for his actions 

3.  The applicant provides no documentary evidence in support of his application.


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 7 January 1969 for a period of 3 years.  He successfully completed basic combat training and advanced individual training and was awarded MOS 11B (light weapons infantryman).  He arrived in Vietnam on 16 June 1969 and he was wounded in action on 14 August 1969.  On 25 September 1969, he was honorably discharged for immediate reenlistment.  While in Vietnam, he reenlisted on 26 September 1969 for a period of 3 years for Army Career Group 76 (supply).

3.  The applicant went AWOL on 13 December 1969 and he returned to military control on 4 June 1971.  He went AWOL again on 17 June 1971 and he returned to military control on 24 April 1972.  On 5 May 1972, court-martial charges were preferred against the applicant for the two AWOL periods.

4.  After consulting with legal 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 court-martial.  He indicated in his request that he understood 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 (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  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.  In summary, he stated he wanted to get out of the Army because he could not adjust to the military and he was needed at home.


5.  On 23 May 1972, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.

6.  Accordingly, the applicant was discharged with an undesirable discharge on 
1 June 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He had served a total of 
1 year, 1 month, and 1 day of active service with 846 days of time lost.

7.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

8.  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.  

9.  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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

3.  The applicant's prior honorable discharge was carefully considered.  However, his record of service during his last enlistment included 846 days of time lost.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20100009588



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)