IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100015315 


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 under other than honorable conditions (UOTHC) discharge be upgraded to general.

2.  The applicant states he served his country proudly for over 2 years in the Republic of Vietnam.  He could not adjust to being on an island when he was stationed in Hawaii.  After the war ended a lot of things changed in his life.  His wife filed for divorce.  Most of his friends back home looked down on him for serving in the war.  Rank did not mean much after the war unless you were an 
E-7 or above.

3.  The applicant provides copies of his DD Form 214 (Report of Separation from Active Duty) and his commander's evaluation at Fort Hood, Texas.

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 records show the following:

Event
Dates
Enlisted in the Regular Army
2 June 1966
Assigned as a light vehicle driver to Headquarters and Headquarters Company, 25th Infantry Division, located in the Republic of Vietnam (RVN)
11 November 1966 to 2 August 1967
Reenlisted in the Regular Army
3 August 1967
Assigned as a light vehicle driver and a truck driver to Headquarters and Headquarters Battery, 2nd Battalion, 9th Artillery Regiment, located in the RVN
3 August 1967 to 18 June 1968
Assigned to Fort Hood, Texas
June 1968 to December 1969
Assigned to the 47th Transportation Company, located in the RVN
29 January 1970 to 11 December 1970
Promoted to staff sergeant/pay grade 
E-6
10 March 1970
3.  On 3 October 1972, the applicant was convicted by a special court-martial of being absent without leave from 7 July 1972 to 13 September 1972.

4.  On 20 March 1975, the applicant was assigned for duty with Headquarters, 45th Support Group, located in Hawaii.

5.  On 11 September 1975, the applicant accepted nonjudicial punishment for being AWOL from 1 to 26 August 1975.

6.  On 9 March 1977, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 for being AWOL from 29 June 1976 to 5 March 1977.

7.  On 11 March 1977, 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, under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which 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 a UOTHC discharge.

9.  In his request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further 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.

10.  On 18 March 1977, the separation authority approved the applicant's request for discharge and directed that he be discharged UOTHC.

11.  On 25 March 1977, the applicant was discharged accordingly.  He had completed a total of 9 years, 10 months, and 16 days of creditable active military service and accrued 286 days of time lost due to AWOL.

12.  On 18 May 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

13.  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 trail by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

16.  The commander's evaluation provided by the applicant appears to have been written on an unknown date during or prior to March 1975.  The commander stated in item 32 that since his "bad time" in October 1972, the applicant had shown he was a capable and mature Soldier and had no disciplinary problems.  The commander felt the applicant's prior personal problems of irresponsibility no longer existed.  The commander recommended him for reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded to general because he served his country proudly for over 2 years in the RVN and was not able to adjust to being on an island.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  There is no evidence of record showing the applicant's misconduct was due to his inability to adjust to being on an island.  Furthermore, the applicant has not provided any documentary evidence or a convincing argument explaining why his assignment in Hawaii was the cause of his problems.

4.  The applicant's record of good service is greatly diminished by the NJP, special court-martial, and subsequent period of AWOL.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  The recommendation from the applicant's commander was written prior to his lengthy AWOL during 1976 and 1977.  Accordingly, the recommendation does nothing to mitigate the applicant's subsequent misconduct.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20100015315



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ABCMR Record of Proceedings (cont)                                         AR20100015315



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