IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100012958 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  He states he was discharged in lieu of court-martial.  He had several periods of absence without leave (AWOL) that were the result of being on leave, being injured by his stepfather, and hospitalized because of it.  This should have been taken into consideration.  He did not know that he could apply for an upgrade of his discharge.  He also states he does not believe he received a proper defense. He was told to sign the discharge or go to Ft. Leavenworth.

3.  He provides copies of the following:

* His DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* His DA Form 20 (Enlisted Qualification Record)
* Two DA Forms 2173 (Statement of Medical Examination and Duty Status)
* His Line of Duty Determination
* His military medical records
* A DD Form 457 (Investigating Officer's Report), page 1
* Two DD Forms 458 (Charge Sheet)
* His separation package
* His DD Form 214 (Report of Separation from Active Duty)
* His 1998 to 2000 Columbus Clinic medical records
* A letter of support from his wife


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.  On 15 May 1967, the applicant enlisted in the Regular Army (RA) in pay grade E-1 for 3 years.  He completed training and he was awarded military occupational specialty 11B (light weapons infantryman).

3.  He was placed on permanent change of station (PCS) leave on 22 September 1967.

4.  An undated DA Form 2173 shows he sustained a cerebral concussion as a result of a family dispute and was hospitalized on 13 October 1967.  The form stated he was hit on the head with a rifle butt on 12 October 1967.  On 26 January 1968, his injury was determined to be in the line of duty.

5.  He served in Vietnam from 1 November 1967 through 27 October 1968.  He was promoted to pay grade E-5 on 1 September 1968.

6.  On 21 January 1969, he accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 30 December 1968 through 13 January 1969.  He did not appeal the punishment.

7.  On 9 July 1975, a DD Form 458 was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Signal Center, Fort Gordon, GA.  He was charged with two specifications of being AWOL from 18 September 1969 through 1 October 1969 and from 9 October 1969 through 9 July 1975.

8.  On 16 July 1975, after consulting with counsel, he voluntarily requested 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.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under other than honorable conditions and furnished a Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.

9.  In his statement, dated 16 July 1975, he stated that he did not want to return to the military service.  He was married and had 5 children and his family needed him.  He also stated he would accept an undesirable discharge or any type.  He waived the 72 hours waiting period and stated he did his time in Vietnam and he had a good military record before going AWOL.  He had 5 children who needed him and he had a good job.

10.  On 6 August 1975, the applicant's unit commander recommended disapproval of the applicant's request for discharge for the good of the service.  The unit commander stated the applicant was charged with AWOL from 18 September to 1 October 1969 and from 9 October 1969 to 9 July 1975.  The unit commander also stated the applicant was recommended for court-martial.

11.  On 8 August 1975, a subsequent DD Form 458 was prepared by the Commander, U.S. Army Personnel Control Facility, Fort Gordon.  He was charged with three specifications of being AWOL from 11 to 12 September 1969, 18 September 1969 through 1 October 1969, and from 9 October 1969 through 9 July 1975. 

12.  On 11 August 1975, court-martial charges were preferred against him.

13.  A DD Form 457, dated 29 August 1975, shows the applicant and his counsel requested his DA Form 20 be submitted as evidence in mitigation in the event of trial.  Counsel suggested that the applicant's foreign service and awards and decorations favorably reflect his performance and potential as a Soldier.

14.  On 2 September 1975, the applicant's battalion commander recommended disapproval of the applicant's request for discharge and recommended the applicant be tried by court-martial.

15.  On 10 September 1975, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

16.  He was discharged accordingly on 30 September 1975 in the rank/grade of private (PV1)/E-1.  He was credited with 2 years, 3 months, and 12 days of net active service and 2,194 days of lost time due to being AWOL.

17.  There is no evidence the applicant requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  His records show he was awarded the Combat Infantryman Badge during his period of service in Vietnam.  His records are absent any evidence of awards for meritorious achievement or performance during his post- Vietnam period of service.

18.  On 20 November 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.  

19.  On 2 April 2002, the ABCMR denied his request for an upgrade of his undesirable discharge.

20.  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. 

21.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

22.  Army Regulation 635-200, paragraph 3-7b, also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization 

of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, the evidence shows in October 1967, while on PCS leave, he sustained an injury which was determined to be in the line of duty.  He completed a tour of duty in Vietnam from November 1967 to October 1968.  During that period he was awarded the Combat Infantryman Badge and Army Commendation Medal and promoted to pay grade E-5.  

2.  During his post-Vietnam period of service he was punished under Article 15 for being AWOL from 30 December 1968 to 13 January 1969.  He was again reported AWOL on 9 October 1969.  Upon his return to military control on 15 July 1975, he voluntarily requested discharge in lieu of trial by court-martial.  In his request, he stated that he did not want to return to the military service and he would accept an undesirable discharge or any type.  In August 1975, court-martial charges were preferred against him for 2,194 days of AWOL.  The applicant and his counsel requested his DA Form 20 be submitted as mitigating evidence in the event of trial.  His counsel also stated the applicant's foreign service and awards and decorations favorably reflect his performance and potential as a Soldier.

3.  His company and battalion commanders recommended disapproval of his voluntary discharge request.  Both recommended he be tried by general court-martial.  However, the convening authority approved his request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged in the rank/grade of PV1/E-1 on 30 September 1975, under the provisions of Army Regulation 635-200, chapter 10.

4.  The applicant is commended for his excellent service from his enlistment in May 1967 through December 1968.  However, based on the gravity of his post-Vietnam service disciplinary record which reflected one Article 15 and 2,194 days of time lost due to AWOL, there is no justification to warrant the requested relief.

5.  He has provided no evidence or a convincing argument to show his undesirable discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

6.  His administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

7.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100012958



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ABCMR Record of Proceedings (cont)                                         AR20100012958



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