IN THE CASE OF:	  

		BOARD DATE:	    25 January 2011

		DOCKET NUMBER:  AR20100019466 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states that after his return from the Republic of Vietnam his mental condition would not let him remain in the Army.  He contends he requested to leave early and was told he would receive an under other than honorable conditions discharge that would be automatically upgraded.
 
3.  The applicant provides copies of a DD Form 303A (Certificate in Lieu of Lost or Destroyed Discharge) and his DD Form 214 for the period ending 20 October 1970.

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.  Records show the applicant first enlisted in the Regular Army on 7 May 1965.  He completed his initial training and was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).

3.  On or about 5 October 1965, the applicant was assigned to the 521st Transportation Company, located at Fort Richardson, Alaska.

4.  On or about 22 December 1965, the applicant departed Alaska for duty in the Republic of Vietnam, where he was subsequently assigned to Company A, 1st Supply and Transportation Battalion.

5.  On or about 21 January 1967, the applicant returned to the United States for duty at Fort Hood, Texas.

6.  He was subsequently discharged on 31 May 1967 with an honorable characterization of service for the purpose of immediate reenlistment.  He subsequently attended camera repair school and was awarded MOS 41E (Camera Repairman).

7.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows:

	a.  5 March to 6 April 1968: Absent without leave (AWOL), 33 days;

	b.  10 September 1968 to 8 January 1969: AWOL, 121 days;

	c.  9 to 12 January 1969: confinement, 4 days;

	d.  3 February to 8 March 1969: AWOL, 34 days;

	e.  11 March to 18 June 1969: confinement, 100 days;

	f.  4 February to 24 March 1970: AWOL, 49 days;

	g.  25 March to 3 April 1970: confinement, 7 days; and

	h.  16 April 1970: AWOL.

8.  On 9 September 1970, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 for being AWOL from on or about 18 April to 1 September 1970.

9.  On 24 September 1970, the applicant consulted with 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, chapter 10.

10.  In his request for discharge, the applicant indicated that he understood that if his discharge request was 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 2 October 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 20 October 1970, the applicant was discharged accordingly.  He had completed a total of 4 years and 2 months of creditable active duty service and had accrued 471 days of time lost due to being AWOL and in confinement.

12.  On 19 September 1973, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.





15.  Army Regulation 635-200, paragraph 3-7a, 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.

16.  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 that his discharge should be upgraded to honorable because his mental condition would not let him remain in the Army.  Furthermore, he contends he requested to leave early and was told he would receive an under other than honorable conditions discharge that would be automatically upgraded.

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

3.  The available evidence does not show the applicant suffered from any mental condition that warranted separation from the military, or that he had a mental condition that contributed to him going AWOL.

4.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge.

5.  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)                                         AR20100019466



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ABCMR Record of Proceedings (cont)                                         AR20100019466



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