BOARD DATE:	  8 September 2010

		DOCKET NUMBER:  AR20100009892 


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 (UD) be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states he enlisted to go to Vietnam, but he was not allowed to go so he requested a discharge.  He claims the post commander told him the only way to be discharged was to take a discharge under other than honorable conditions.

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’s record shows he enlisted in the Regular Army and entered active duty on 24 May 1971.  The applicant did not complete basic combat training, was never awarded a military occupational specialty, and never advanced beyond the grade of private (PV1)/E-1.  His record documents no acts of valor or significant achievement.

3.  The applicant’s disciplinary history includes his accrual of 102 days of lost time due to four separate periods of being absent without leave (AWOL) between 10 June 1971 and 1 February 1972.

4.  A complete separation packet containing all the facts and circumstances surrounding the applicant’s separation processing are not on file in his record.  The record does contain a DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag)) that shows he was flagged for going AWOL while pending a special court-martial for a previous AWOL period.

5.  The record also contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that identifies the authority and reason for his discharge.  It confirms he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu to trial by court-martial.  It further shows at the time of his discharge on 23 March 1972 he held the rank/grade of PV1/E-1 and he completed 6 months and 19 days of creditable active military service with 102 days of lost time due to AWOL.

6.  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 discharge or GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  At the time of the applicant’s discharge the issuance of a UD was authorized.

7.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 contention that his discharge should be upgraded because he was not allowed to go to Vietnam and he requested discharge has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant’s DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request discharge from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his accrual of 102 days of lost time due to four separate periods of AWOL.  It further shows he voluntarily requested discharge to avoid a court-martial that could have resulted in receipt of a punitive discharge.

5.  The UD he received was normal and appropriate under the regulatory guidance in effect at the time and his overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing a GD at the time of discharge, nor does it support an upgrade now.

6.  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)                                         AR20100009892



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR201