BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100014116 


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 that his undesirable discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  He states he was very young at the time and due to the treatment he received when he returned home from Vietnam, he was a bitter person.  He admits he made a mistake by departing his unit in an absent without leave (AWOL) status.  He contends he completed a tour of duty in Vietnam in support of his country, the rest of his military record is clean, and he thinks he deserves to have his discharge changed.

3.  He provides no additional evidence in support of his request.

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 born on 5 July 1950.  He enlisted in the Regular Army on 12 September 1969 at the age of 18 years, 10 months, and 8 days.  Upon completion of initial entry training he was awarded military occupational specialty 62F (Crane Shovel Operator).  On 13 May 1970, he was honorably discharged for the purpose of immediate reenlistment.  He served a tour of duty in the Republic of Vietnam from 8 August 1970 to 7 August 1971.  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for committing the following offenses in violation of the articles of the UCMJ as indicated:

* Article 121 - wrongfully appropriated property of the government
* Article 86 - failed to go at the prescribed time to his appointed place of duty on 13 April 1972
* Article 86 - failed to go at the prescribed time to his appointed place of duty on 14 April 1972
* departed his unit in an AWOL status for several hours on 14 April 1972

4.  Special Court-Martial Order Number 36 issued by Headquarters, 13th Support Brigade, on 30 June 1972 shows he was arraigned and tried before a special court-martial for one specification of violating Article 86 of the UCMJ by departing his unit in an AWOL status from 13 May 1972 until 30 May 1972.  He pleaded guilty and was found guilty of the charge and the sentence was adjudged on 20 June 1972.

5.  A DD Form 458 (Charge Sheet), dated 22 May 1973, shows he was charged with one specification of violating Article 86 of the UCMJ by being AWOL from his unit from 6 July 1972 to 2 May 1973.

6.  On 24 May 1973, he 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  His chain of command recommended approval of his request and recommended that he be issued an undesirable discharge.

8.  On 6 June 1973, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate).

9.  On 8 June 1973, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued a DD Form 258A.  His service was characterized as "under other than honorable conditions."  He completed 2 years, 10 months, and 15 days of creditable active military service.  He was credited with 85 days of lost time and 232 days of lost time subsequent to the normal expiration of his term of service (11 September 1972).

10.  On 26 February 1987, the Army Discharge Review Board informed him that the board reviewed his case and determined he was properly and equitably discharged and that his request for a change in the character and/or reason of his discharge was denied.

11.  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 at any time after the charges have been preferred.

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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  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 request that his undesirable discharge under other than honorable conditions be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  He contends his misconduct was the result of his young age and the treatment he received when he returned home from Vietnam.  His record shows he was nearly 19 years of age at the time of his enlistment and between 21 and 23 years of age at the time of his offenses.  There is no evidence indicating he had to endure any hardships or mistreatment following his return from Vietnam or that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions and a special court-martial on one occasion.

4.  His record also shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

6.  Based on his record of indiscipline, he is not entitled to an upgrade of his 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)                                         AR20100014116





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ABCMR Record of Proceedings (cont)                                         AR20100014116



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