IN THE CASE OF:	  

		BOARD DATE:	  23 November 2

		DOCKET NUMBER:  AR20100015581 


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 his undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  He states, in effect, that he served in the Republic of Vietnam (RVN) with the Americal Division and the 3rd Marine Amphibious Division.  He believes he deserves a better than undesirable discharge.

3.  He provides no additional documentation in support of this case

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 10 January 1968.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).   

3.  On 23 April 1968, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failure to be at his appointed place of duty.

4.  On 10 September 1968, he was honorably discharged for the purpose of immediate reenlistment on 11 September 1968. 

5.  On 13 January 1969, he was convicted by a summary court-martial of being absent without leave (AWOL) during the periods 30 November 1968 through 
14 December 1968 and 18 December 1968 through 21 December 1968, and for disobeying a lawful order from a superior officer.  His sentence consisted of a forfeiture of $67.00 pay per month for 1 month, reduction to the rank/grade of private (PV1)/E-1, and restriction to the company area for 60 days.

6.  On 28 May 1969, he arrived in Vietnam and was assigned to Headquarters and Headquarters Company, Americal Division.  While serving in Vietnam, he was awarded the Army Commendation Medal, Vietnam Service Medal with three bronze service stars, and the Republic of Vietnam Campaign Medal.  He departed Vietnam on 20 April 1970 and eventually was assigned to Headquarters and Headquarters Company, 1st Battalion, 81st Armor, 1st Armored Division, Fort Hood, Texas.

7.  A DD Form 458 (Charge Sheet), dated 28 August 1974, shows charges were preferred against him for being AWOL during the period 19 April 1971 through 
26 August 1974.

7.  On 29 August 1974, after consulting with counsel, he submitted a request for 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.  

8.  He indicated in his request that he understood he could 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; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf, but the statement is not in his available records.
9.  On 13 September 1974, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 1 October 1974, the applicant was discharged accordingly.  He completed a total of 3 years, 4 months, and 2 days of total active service with 1,239 days of time lost due to AWOL and confinement.

10.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 12 January 1979, the ADRB reviewed and denied his request for upgrade.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  At the time, an undesirable discharge was normally considered appropriate.

12.  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 combat service in Vietnam as well as his awards and decorations are acknowledged.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence that he was any more under stress than the thousands of other Soldiers who honorably served in Vietnam or other combat zones under similar or even more stressful situations without having to later go AWOL. 

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, in his case he voluntarily requested discharge from the Army in lieu of trial by court-martial.  
4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  His records show that he was convicted by a summary court-martial, he received one Article 15, and had three instances AWOL, one for a lengthy period. He had completed a total of 3 year, 4 months, and 2 days of creditable active service with about 1,239 days of lost time due to being AWOL and confinement.  Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of a general 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)                                         AR20100015581





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ABCMR Record of Proceedings (cont)                                         AR20100015581



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