IN THE CASE OF:	  

		BOARD DATE:	  30 September 2010

		DOCKET NUMBER:  AR20100010853 


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 under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states he was sent home on medical leave in November 1967.  He went to Fort Campbell, KY, 3 to 4 months in a row.  Finally, the doctor at Fort Campbell told him to stay home until he had medical paperwork.  He went to work because he was not getting paid and used his real name and social security number.  He then waited for the Army to contact him.  Then one day, Federal authorities arrested him for being absent without leave (AWOL).  He had a good record throughout his military service and stayed out of trouble until his medical situation.  He deserves at least a general discharge.  At the time of his discharge, he and other Soldiers in similar situations were herded into a room and were told they were getting a dishonorable discharge.  They were not allowed to ask any questions.  He adds that former President Clinton signed a bill for the Vietnam veterans to come back from Canada and that they would be forgiven with no charges.  Therefore, he feels his discharge should be upgraded.

3.  The applicant did not provide any additional documentary evidence.

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 records show he was inducted into the Army of the United States on 14 July 1966 and held military occupational specialty 71F (Postal Clerk).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  His records show he served in Vietnam from on or about 9 December 1966 to on or about 8 December 1967.  He was awarded the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960).

4.  On 6 January 1968, he departed his unit in an AWOL status and on 4 February 1968 he was dropped from the Army rolls.  He was apprehended by agents of the Federal Bureau of Investigation in Nashville, TN, and was returned to military control at Fort Campbell, KY, on 11 November 1973.

5.  On 14 November 1973, he acknowledged that he was AWOL from on or about 6 January 1968 through on or about 10 November 1973.

6.  On 5 December 1973, his command preferred court-martial charges against him for one specification of AWOL from on or about 6 January 1968 through on or about 10 November 1973.

7.  On 10 December 1973, he consulted with legal counsel who advised him 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 (UCMJ), 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).

8.  In his request for discharge, he acknowledged he understood that if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life.  With his request for discharge, he submitted a statement wherein he indicated he went AWOL because of personal problems with his family and that since he had been out for so long, he did not feel he could cope with military life.

9.  On 10 December 1973, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 12 December 1973, his senior commander recommended approval with the issuance of an Undesirable Discharge Certificate.  He further remarked that further efforts to rehabilitate the applicant were futile.

11.  On 17 December 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 21 December 1972, he was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 1 year, 6 months, and 27 days of creditable active military service with 2,135 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  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.

14.  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 discharge should be upgraded.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ 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 voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he 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)                                         AR20100010853



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ABCMR Record of Proceedings (cont)                                         AR20100010853



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