IN THE CASE OF:	  

		BOARD DATE:	    3 February 2011

		DOCKET NUMBER:  AR20100019595 


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 an upgrade of his undesirable discharge.

2.  The applicant states he was not allowed leave even before his overseas duty and that he stayed in the service for the full term.  He adds that he was discharged in June 1974 and less than a month later, he started working for the Richmond Airport.  He moved up the ladder and he became an acting manager in 1991.  He worked in the same department for over 30 years.  He has been a law-abiding citizen and he raised a family.  He feels he was not treated fairly during his military service.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a photograph of himself.

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 on 30 August 1971 for a period of 3 years.  He held military occupational specialty 76W (Petroleum Storage Specialist).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  He served in Vietnam from 16 March 1972 to 8 February 1973.  He was awarded the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.

4.  His record reveals a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 9 March 1972 for being absent without leave (AWOL) from 1-7 March 1972
* on 17 May 1972 for communicating a threat
* on 10 May 1973 for being AWOL from 23 April to 8 May 1973
* on 26 July 1973 for being AWOL from 9-8 July 1973

5.  On 16 October 1973, his immediate commander initiated a QMFL Form 726 (Bar to Enlistment/Reenlistment) certificate against him citing his extensive history of AWOL and/or misconduct.  The applicant was furnished a copy of this bar but he elected not to submit a statement in his own behalf.  His bar was ultimately approved by the approval authority.

6.  On 13 August 1973, he departed his Fort Lee, VA, unit in an AWOL status and on 12 September 1973, he was dropped from the rolls of the Army.  He was subsequently apprehended by Federal authorities and he was returned to military control on 14 September 1973.

7.  On 19 September 1973, court-martial charges were preferred against him for one specification of AWOL from 13 August 1973 to 14 September 1973.

8.  On 24 September 1973, he again departed his unit in an AWOL status.  He returned to military control on 27 September 1973.

9.  On 9 October 1973, an additional court-martial charge was preferred against him for his AWOL from 24 to 27 September 1973.

10.  On 17 October 1973, the applicant's immediate commander notified the applicant of his intent to initiate elimination from the service action against him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13, by reason of unfitness.  The immediate commander cited the applicant's frequent incidents of a discreditable nature including repeated commission of court-martial offenses and his established pattern of shirking.  The immediate commander further recommended an Undesirable Discharge Certificate.

11.  On 23 November 1973, the applicant again departed his unit in an AWOL status.  He returned to military control on 28 November 1973.

12.  On 29 November 1973, an additional court-martial charge was preferred against the applicant for his AWOL from 23 to 28 November 1973.

13.  On 10 December 1973, he again departed his unit in an AWOL status.  He returned to military control on 6 January 1974.

14. On 11 January 1974, the applicant acknowledged receipt of the separation memorandum, he consulted with legal counsel, and he was advised of the basis for the contemplated separation under the provisions of Army Regulation
635-200, chapter 13, for unfitness, the type of discharge and its effect on further enlistment or reenlistment, the possible effects of an undesirable discharge, and of the procedures/rights that were available to him.  He further acknowledged that he understood that he could expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him and that he could be ineligible for many or all benefits as a veteran under both Federal and State laws and could expect to encounter substantial prejudice in civilian life in the event an undesirable discharge under other than honorable conditions was issued to him.  He requested consideration of his case by a board of officers and appearance before a board of officer but declined making a statement in his own behalf.

15.  On 11 January 1974, his immediate commander notified him that he was required to appear before a board of officers for the purpose of determining whether he should be discharged under the provisions of Army Regulation
635-200, chapter 13.  The immediate commander cited the applicant's extensive history of AWOL.

16.  On 12 January 1974, an additional court-martial charge was preferred against the applicant for another specification of AWOL from 10 December 1973 to 6 January 1974.

17.  On 16 and 22 January 1974, his intermediate and senior intermediate commanders recommended approval of the applicant's discharge for unfitness.

18.  On 23 May 1973, the Commanding General (CG), U.S. Army Quartermaster Center, Fort Lee, VA, preferred the three specifications of AWOL to a special court-martial empowered to adjudge a bad conduct discharge.

19.  It appears that at some stage, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  It also appears that following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.

20.  In his request for discharge, the applicant would have acknowledged that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also would have indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He would have further acknowledged he understood that if the 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request would have also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

21.  On 6 June 1974, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  The separation authority directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  On 17 June 1974, the applicant was discharged accordingly.

22.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a characterization of service of under other than honorable conditions.  This form further shows he completed 2 years, 1 month, and 20 days of total active service with 238 days of time lost.

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

24.  Army Regulation 635-200 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 Veterans Administration 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.

25.  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 records reveal an extensive history of misconduct that included four instances of NJP and an extensive history of AWOL.  Accordingly, his chain of command initiated separation action against him under the provisions of Army Regulation 635-200, chapter 13, for unfitness.  However, his continued unauthorized absences led the convening authority to prefer several specifications of AWOL to a special court-martial empowered to adjudge a bad conduct discharge.

2.  His record is void of the request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.  However, his record contains an approval memorandum of his discharge 

by the CG, Fort Lee, as well as a properly-constituted DD Form 214 that shows he was discharged on 17 June 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a trial by court-martial.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required him to voluntarily, willingly, and in writing request discharge from the Army in lieu of a trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, his discharge accurately reflects his overall record of service.

4.  His post-service history of civilian employment and his good standing in the community are noted.  However, they do not overshadow his extensive history of AWOL during his period of active military service.  Additionally, there is no evidence in his records and he did not submit any evidence that shows he requested leave or that he addressed this issue with his chain of command or other support channels.  In any case, there were many other options he could have used to resolve any personal issues.

5.  Based on his extensive record of indiscipline, 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.

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

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)                                         AR20100019595



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ABCMR Record of Proceedings (cont)                                         AR20100019595



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