BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011308 


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 (UD).

2.  The applicant states his UD was the result of his having been absent without leave (AWOL).  He claims his AWOL was forced on him as a result of several administrative errors committed by the Army that left him and his family destitute.

3.  The applicant further states the interest of justice would be served by recognizing his years of exemplary service including almost three years in a war zone.

4.  The applicant provides the following documents:

* an undated letter from The Inspector General (TIG) to a Member of Congress
* a letter to his wife, dated 29 February 1972
* a Letter of Appreciation, dated 14 December 1971
* a self-authored letter, dated 6 March 2010
* a Congressional Inquiry Packet, dated 11 March 2010

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 was initially inducted into the Army of the United States on 18 August 1966 for a period of 2 years.  He served in that status for 1 year, 3 months, and 5 days until being honorably discharged on
22 November 1967 for the purpose of enlisting in the Regular Army (RA).  On
23 November 1967, he enlisted in the RA for 3 years and he served in that status for 2 years, 7 months, and 20 days until being honorably discharged on 12 July 1970 for the purpose of immediate reenlistment.  On 13 July 1970, he reenlisted in the RA for an additional 3 years and continued serving on active duty in that status for 11 months and 26 days until being honorably discharged on 8 July 1971 for the purpose of reenlistment.  The record contains DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge) issued on 22 November 1967, 12 July 1970, and 8 July 1971, which recognize these periods of honorable active service.

3.  On 9 July 1971, the applicant reenlisted in the RA for 6 years and began serving the period of service under review.  His DA Form 20 (Enlisted Qualification Record) shows he served in military occupational specialties (MOS's) 13A (Cannoneer), 71H (Personnel Specialist), and 91G (Social Worker Specialist).  The highest rank/grade he attained while serving on active duty was staff sergeant (SSG)/E-6.

4.  The record also shows the applicant served in the Republic of Vietnam during the following three periods:  

* 5 March through 8 October 1967
* 16 April 1968 through 7 October 1969
* 18 September 1971 through 2 April 1972

5.  The record shows that during his active duty tenure, the applicant earned the following awards:

* National Defense Service Medal


* Vietnam Service Medal with 10 bronze service stars 
* Republic of Vietnam Campaign Medal with Device (1960)
* Bronze Star Medal with 1st Oak Leaf Cluster
* Army Good Conduct Medal 
* Army Commendation Medal 
* 5 Overseas Service Bars
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

6.  The record also shows the applicant accrued 154 days of time lost during an AWOL period from 4 June 1973 to 4 November 1973.  

7.  A court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 4 June 1973 to on or about 4 November 1973.

8.  On 8 November 1973, the applicant consulted with legal counsel and he was advised of the basis for his contemplated trial by court-martial under circumstances that could have led to a bad conduct or dishonorable discharge, of the effects of a request for discharged in lieu of trial by court-martial, and of the rights available to him.

9.  Subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service.  He acknowledged his understanding that if his request for discharge were accepted he could receive a UD and as a result of receiving this type of discharge he would be deprived of many or all Army benefits, he could be ineligible for benefits administered by the Veterans Administration (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he could encounter substantial prejudice in civilian life by reason of receiving a UD.

10.  On 23 November 1973, the separation authority approved the applicant's request for discharge and directed he receive a UD and that he be reduced to the lowest enlisted grade.  On 10 December 1973, the applicant was discharged accordingly.  

11.  The DD Form 214 issued to the applicant upon his 23 November 1973 discharge shows he separated under other than honorable conditions, in the rank/grade of private (PV1)/E-1.  It further shows he completed 1 year,
11 months, and 28 days of his current enlistment, and a total of 6 years,
10 months, and 19 days of total active service.  It further shows he accrued 154 days of time lost due to AWOL.

12.  The applicant provides a letter of appreciation he received on 14 December 1971.  He also provides a letter from TIG that confirms although the applicant’s wife received an erroneous letter indicating he was AWOL, a letter confirming this letter was erroneous was provided to his wife in February 1972.  The letter also confirms the applicant was assisted with his pay problems and that he was offered family quarters for himself and family in October 1972.

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 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.

14.  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 UD should be upgraded because his AWOL was the result of administrative errors made by the Army and in recognition of his years of exemplary service, including combat service, has been carefully considered.  However, the evidence is not sufficient to support this claim.

2.  The TIG letter provided by the applicant confirms issues related to his pay and erroneous AWOL period were resolved in 1972 and that he had been offered alternatives to resolve his family problems at the time.  There is no evidence indicating he took advantage of these alternatives.

3.  The evidence of record confirms the applicant’s years of honorable active service were appropriately documented in his DD Forms 214 issued on
22 November 1967, 12 July 1970, and 8 July 1971.  As a result, his exemplary service, including his combat service in the Republic of Vietnam, has been appropriately recognized.

4.  The record further confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge, and that after consulting with defense counsel, the applicant voluntarily requested discharge 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.

5.  The UD received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of valor or significant achievement during the enlistment under review that would have supported the issuance of an honorable or a general discharge by the separation authority at the time of his discharge or that would support an upgrade at this late date.  As a result, his record of service during the period under review is not sufficiently meritorious to support granting the requested relief.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100010862



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ABCMR Record of Proceedings (cont)                                         AR20100011308



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