IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100019044 


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.

2.  The applicant states, in effect, he extended his tour in Vietnam 6 months to wait for housing for his family; however, he did not get housing due to a housing shortage.  He lost it [control] when he could not keep his family together, his wife was pregnant, and she was going to leave him.

3.  The applicant provides the following:

* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 27 May 1971 and 27 March 1974
* DA Form 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 20 June 1970
* DA Form 20 (Enlisted Qualification Record), dated 18 March 1974 

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.  With prior Regular Army (RA) service, the applicant reenlisted in the RA on 
28 May 1971 in military occupational specialty 52B (Power Generator Equipment Operator).

3.  His last assignment was with B Battery, 6th Battalion, 59th Air Defense Artillery, Friedberg, Germany.

4.  During this period of reenlistment, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ for being absent without leave (AWOL) from 2 to 3 November 1971. 

5.  On 15 January 1972, he departed AWOL a second time and he was dropped from Army rolls on 14 February 1972.  On 3 March 1974, he voluntarily turned himself in at Fort Leonard Wood, MO.

6.  The applicant's charge sheet is not in the available record.  However, on 
7 March 1974 he indicated in his request for discharge that he understood if his discharge request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood 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 (VA), that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  In a personal statement that was submitted with his request for discharge the applicant indicated, in effect, his wife gave birth to a baby that was not his and he took leave to be with her.  He did not return because she threatened to leave him.  He served in Vietnam from 19 April 1970 to 5 April 1971 and did not think he could go through that again because they were still together.  He wanted out of the Army.

8.  The separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, directed that he be reduced to the lowest enlisted grade, and issued an Undesirable Discharge Certificate.  He was discharged accordingly on 27 March 1974.  He had completed 3 years and 7 months of total active service.  He also had 679 days of lost time.

9.  On 3 November 1981, the Army Discharge Review Board (ADRB) denied his request to upgrade his discharge.

10.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided 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, type of discharge normally given under the provisions of this chapter, the loss of VA 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 an individual who was discharged for the good of the Service at the time the applicant was discharged.  

11.  Army Regulation 635-200 further provides that:

   a.  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; and  

   b.  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 requests that his undesirable discharge be upgraded.  He contends he went AWOL because he was denied housing for family in Germany and he wanted to keep his family together.

2.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial.  He acknowledged he understood he could receive an undesirable discharge.  Based on the available evidence, his request for discharge was administratively correct and in compliance with applicable regulations.

3.  The type of discharge and the reason for separation were appropriate considering all the facts of the case.  The available evidence contains no indication of procedural or other errors that would have jeopardized his rights.

4.  There is nothing in his record to show he was denied housing, even if so, he had many other avenues he could have explored to keep his family together by going through his chain of command.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20100019044



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ABCMR Record of Proceedings (cont)                                         AR20100019044



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