IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100013993 


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 to a general discharge.

2.  The applicant states he served honorably in Vietnam but when he returned to the United States he was unable to cope with continued military service.  He was absent without leave (AWOL) twice but turned himself in both times.  He asks that the Board consider his youth, lack of maturity, and his mental state.

3.  The applicant provides copies of his DD Form 214 (Report of Transfer or Discharge) and 10 pages from a Department of Veterans Affairs (DVA) processing manual.

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 12 January 1968 at the age of 19 years old.  He completed training and was awarded military occupational specialty 70A (Clerk).

3.  He served in Vietnam with the 38th Base Post Office - Vietnam from 7 June 1968 to 31 May 1969.  He received "excellent" conduct and efficiency ratings for his period of service prior to his reassignment to Fort Rucker, AL on 14 July 1969.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* 11 September 1969, for 23 days of AWOL
* 31 October 1969, for dereliction of duty by being drunk on duty

5.  The applicant was AWOL from 5 August 1970 through 2 September 1970 and again from 8 September 1970 through 22 February 1971.  On 22 March 1971, court-martial charges were preferred against the applicant for these two periods of AWOL.

6.  On 8 March 1971, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) , chapter 10, discharge for the good of the service - in lieu of trial by court-martial, for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

7.  On 25 March 1971, the court-martial convening authority approved the applicant's discharge request with issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  He was accordingly discharged on 2 April 1971.

8.  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

9.  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.

10.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 19 years of age, had satisfactorily completed training, and had served for over a year in Vietnam before any adverse incidents were documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

2.  In the absence of evidence that, at the time of his AWOL, he was so impaired as to be unable to tell right from wrong or to adhere to the right, his contention of mental state does not mitigate the AWOL and his service was appropriately characterized.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  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)                                         AR20100013993



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ABCMR Record of Proceedings (cont)                                         AR20100013993



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