IN THE CASE OF:	  

		BOARD DATE:	  2 December 2010

		DOCKET NUMBER:  AR20100014813 


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.

2.  The applicant states he could not adjust to the military.  He adds that he got into a fight with a police officer and he was absent without leave (AWOL).

3.  The applicant provides no additional documentary evidence in support of his application.

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 and entered active duty in the Regular Army for a period of 2 years on 23 December 1968.  He completed basic combat training and advanced individual training, and he was awarded military occupational specialty 12A (Pioneer) on 16 May 1969.

3.  On 29 May 1969, the applicant departed Fort Leonard Wood, MO, en route to U.S. Army Pacific [Vietnam].

4.  Headquarters, Special Processing Battalion (Provisional), Fort George G. Meade, MD, Summary Court-Martial Order Number 647, dated 15 July 1969, shows that at a summary-court martial the applicant pled guilty and was found guilty of the charge and specification of AWOL from 18 June to 1 July 1969.  He was sentenced to reduction to private (E-1) and to perform hard labor without confinement for 20 days.  On 15 July 1969, the convening authority approved the sentence and ordered it executed.

5.  Headquarters, Special Processing Battalion (Provisional), Fort George G. Meade, MD, Special Court-Martial Order Number 3196, dated 17 November 1969, shows that at a special-court martial the applicant pled guilty and was found guilty of the charge and specification of AWOL from 22 July to 26 October 1969.  He was sentenced to be confined at hard labor for 45 days.  On
17 November 1969, the convening authority approved the sentence and ordered it executed.

6.  Headquarters, Special Processing Battalion (Provisional), Fort George G. Meade, MD, Special Court-Martial Order Number 3456, dated 16 December 1969, shows that the approved sentence to confinement at hard labor for 45 days was suspended for six months.

7.  On 12 June 1970, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being AWOL from 19 December 1969 to 24 February 1970 and from 24 May 1970 to 
8 June 1970.

8.  On 18 June 1970, the applicant consulted with legal counsel and he voluntarily requested a discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He was afforded the opportunity to consult with counsel.  He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.
   
   b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

9.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with a character of service of under conditions other than honorable.

10.  On 6 August 1970, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to the rank/pay grade of private (PV1)/E-1 and issued an Undesirable Discharge Certificate.

11.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 6 August 1970 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with service characterized as under conditions other than honorable.

   a.  At the time he had completed 9 months and 18 days of net active service.

   b.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show he had 296 day lost under Title 10, U.S. Code, section 972, from 22 June through
9 July 1969; 22 July 1969 through 24 February 1970; 24 May through
6 June 1970; and 8 June through 23 July 1970.

12.  The applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his discharge.  On
16 February 1979, after careful consideration of the applicant's military records and all other available evidence, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

13.  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.
14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

	a.  chapter 10, of the version in effect at the time, provides 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, the 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 to an individual who was discharged for the good of the service.

	b.  chapter 3, paragraph 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.

	c.  chapter 3, paragraph 7b, provides that an under honorable conditions 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 contends his discharge under conditions other than honorable should be upgraded to honorable.

2.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.


3.  The evidence of record shows the applicant was en route to Vietnam when he initially went AWOL.  The evidence of record also shows the applicant was found guilty at a summary court-martial for being AWOL and subsequently found guilty at a special court-martial for being AWOL.

4.  Records show the applicant was AWOL for a total of 296 days (i.e., 9 months and 26 days) and he completed only 9 months and 18 days of his 2-year active duty obligation.  Thus, the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100014813



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ABCMR Record of Proceedings (cont)                                         AR20100014813



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