BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100012700 


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, in effect, that his undesirable discharge be upgraded.

2.  The applicant states, in effect, he went through family issues that he could not handle.  He also states he received ineffective counseling or advice.

3.  The applicant provided the following documents:

* Personal Statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 16 December 1966, Honorable Discharge
* DD Form 214, dated 9 December 1970, Honorable Discharge, transferring him to the U.S. Army Reserve
* DD Form 214, dated 7 December 1971, Undesirable Discharge
* Two DD Forms 4 (Enlistment Record-Armed Forces of the United States)
* Letter Orders Number 04-91117, dated 30 April 1971, that show he was honorably discharged on 14 December 1970
* Action Letter, dated 23 November 1971
* Request for Discharge for Good of the Service, dated 23 November 1971
* Statement from Defense Counsel
* DA Form 20B (Record of Court-Martial Conviction)
* DA Form 20 (Enlisted Qualification Record)


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 13 December 1965.  He completed basic combat training and advance individual training.  He served in Germany during the period 25 April 1966 through 4 April 1969 and in Korea during the period 1 March through 9 December 1970.

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

   a.  on 17 February 1970, for being absent without leave (AWOL) from 
6 January through 7 February 1970;
	
   b.  on 11 May 1971, for being AWOL from 3 May through 10 May 1971; and 

4.  On 29 March 1971, he was convicted by a special court-martial for being AWOL from 5 January through 15 March 1971.

5.  On 28 August 1971, charges were preferred against the applicant for being AWOL from on or about 2 June 1971 to on or about 5 July 1971.

6.  On 23 November 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the 


applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In this request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of 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.

8.  On 23 November 1971, the staff judge advocate recommended that the applicant's request for discharge for the good of the service be approved and that he be issued an Undesirable Discharge Certificate.

9.  On 7 December 1971, the separation authority approved the applicant's request for discharge and directed that he be issued an Undesirable Discharge Certificate.  The applicant was discharged accordingly on that date.  He completed 5 years, 7 months, and 10 days of creditable active military service and accrued 138 days of time lost due to being AWOL.  

10.  The applicant provided a personal statement which indicates:
	 
* after he reenlisted, his wife left him and he followed her all over the country to no avail
* he turned himself in, was fined, made platoon sergeant, and was told he would get back into the tank company
* his first sergeant and company commander were transferred to Vietnam and the verbal agreement to return him to the tank company was gone
* he did not see eye to eye with his new company commander and he was fired as a platoon sergeant and told to get out of the Army

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for 
the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, an undesirable discharge was considered appropriate at the time.


12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or otherwise so meritorious that any characterization would be clearly in appropriate.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded because he had family problems was carefully considered and it was determined there is insufficient evidence to support this contention.  As an experienced Soldier, he should have known there were other avenues to resolve his problems rather than going AWOL.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with 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. 

3.  Based on his record of indiscipline, the applicant’s service clearly does not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable or 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)                                         AR20100012700



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ABCMR Record of Proceedings (cont)                                         AR20100012700



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