IN THE CASE OF:	  

		BOARD DATE:	    16 February 2011

		DOCKET NUMBER:  AR20100021071 


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 upgrade of his undesirable discharge to a general.

2.  The applicant states he performed 6 years of faithful and meritorious service to his country.  He served in the Republics of Korea, Germany, and Vietnam.  He had no disciplinary problems and he had attained the rank/grade of specialist five (SP5)/E-5.  He reenlisted while in Korea and he had planned to make the Army a career.  He contends that his tour in Vietnam resulted in his developing post traumatic stress disorder (PTSD), which was not diagnosed until years later.  He could no longer serve his country as a Soldier.  He requested to be discharged for the good of the service, which was denied.  He went absent without leave (AWOL) that resulted in him receiving an undesirable discharge.  He has lived with this stigma for 38 years.  He is an extremely proud American and he is extremely proud of his country.  As he grows older, he feels his shame more than ever, and he wants to correct the mistakes of his past.  He can no longer hide when he sees his country's flag waving before him.  He now asks for his country to recognize him for the Soldier that he was and not the fool he had become.

3.  The applicant provided no additional documentation.

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.  On 7 December 1965, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 76Q (Repair Parts Specialist).

3.  The applicant was advanced to specialist four (SP4)/E-4 on 14 August 1967.  

4.  He was subsequently assigned for duty in the Republic of Korea, where he reenlisted on 19 October 1967 for a period of 6 years.

5.  On 5 March 1968, he was promoted to SP5/E-5.

6.  In early 1970, the applicant was assigned to Germany for duty with the 54th Engineer Battalion.

7.  On 4 March 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his appointed place of duty.

8.  In July 1970, he was assigned for duty in the Republic of Vietnam, where he served until 25 June 1971, when he returned to Germany.

9.  On 4 August 1971, the applicant was assigned to the 663rd Transportation Company, located at Fort Eustis, VA.

10.  On or about 31 May 1972, charges were preferred against the applicant under the UCMJ for violation of Article 86, for being absent without leave (AWOL) from on or about 20 September 1971 to on or about 8 December 1971 and from on or about 15 December 1971 to on or about 27 April 1972.

11.  On 19 June 1972, the applicant consulted with legal counsel and he 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 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.

12.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a discharge under other than honorable conditions and furnished an Undesirable Discharge Certificate, which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

13.  On 11 July 1972, the separation authority approved the applicant’s request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 12 October 1972, the applicant was discharged accordingly.  He had completed 6 years, 3 months, and 6 days of total active service with 212 days of time lost due to AWOL.

14.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  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.


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.

17.  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.

DISCUSSION AND CONCLUSIONS:

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

2.  There is no evidence of record, and the applicant has not provided any documentation showing that he had suffered from PTSD or similar condition, or that such condition was the proximate cause of his lengthy periods of AWOL.

4.  The applicant's record of good service is greatly diminished by his lengthy periods of AWOL and outweighed by the circumstances of the discharge.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

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

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

___X____  __X____  ___X____  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20100021071



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ABCMR Record of Proceedings (cont)                                         AR20100021071



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