IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100015566 


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, in effect, that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, he was unjustly targeted by his unit commander.  He was a young Soldier on a weekend pass and his car broke down.  He got a ride back to base and his commander would not allow him to go back to get his car.  He went back anyway and he was given an Article 15, and unfairly discharged.  He served honorably in Vietnam and he does not believe he should be penalized for trying to do the right thing.

3.  The applicant provided no additional evidence. 

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 he enlisted in the Regular Army (RA) on 31 July 1967 at age 19.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 62B (Engineer Equipment Repairman). 

3.  His records show he arrived in Vietnam on 26 January 1968 and he was assigned to the 157th Quartermaster Company on 31 January 1968, he was further assigned to the 630th Ordnance Company on 3 March 1969.

4.  On 7 August 1969, he was honorably discharged for the purpose of immediate reenlistment.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period shows he completed 2 years and 7 days of creditable active service with no lost time.

5.  On 8 August 1969, he reenlisted in the RA.  On 28 August 1969, he left Vietnam and he was assigned to the 63rd Engineer Battalion, Fort Hood, TX.  Records show he was absent without leave (AWOL) from his unit from 1 December to 4 December 1969 and from 6 February to 4 June 1970 until he was returned to military control at Fort Lewis, WA.  Records show he had been charged with grand larceny and he was incarcerated at King County Jail, Seattle, WA.  

6.  On 12 June 1970, he was reported AWOL and he returned to military control on 22 November 1971.  On 10 December 1971, court-martial charges were preferred against him for this period of AWOL.

7.  On 22 December 1971, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, of the maximum permissible punishment, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service - in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations), chapter 10.

8.  In his request for discharge, he acknowledged he understood if the discharge request was approved, he may be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.  

9.  In a statement submitted with his request for discharge, he indicated he was in civil custody from October 1970 to June 1971 for passing checks when the funds in his account were insufficient.  He also indicated he felt he would not be able to return to military duty.

10.  On 4 January 1972, his chain of command recommended approval of his request for discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 7 January 1972, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10 with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 18 January 1972, he was discharged accordingly.  

12.  The DD Form 214 he was issued for this period shows he completed a total of 2 years, 8 months, and 8 days of total active service and he had 528 days of lost time.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time.

15.  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 contends his undesirable discharge should be upgraded to a general discharge because he was young and he was unjustly targeted by his unit commander.  However, the available records do not support this argument.  

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

3.  His record of service shows he went AWOL on four different occasions and he had been incarcerated by civil authorities on two occasions.  He had been AWOL 528 days when he was returned to military control on 22 November 1972.  He was subsequently charged with being AWOL which was the basis for his voluntary discharge.

4.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

5.  Additionally, the applicant's contention that he was young was taken into consideration; however, the applicant met entrance qualification standards to include age and there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

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)                                         AR20100015566



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100015566



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1