IN THE CASE OF:	  

		BOARD DATE:	  17 February 2011

		DOCKET NUMBER:  AR20100021727 


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 under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states he was a young man who was drafted into the Army even though he had a wife and two kids.  

3.  The applicant provides no documentary evidence in support of his application.  

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 record shows he was inducted into the Army on 25 September 1969, at the age of 20.  He completed basic combat training at Fort Gordon, Georgia, and advanced individual training (AIT) at Fort Polk, Louisiana.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 36K (Wireman).  

3.  The record shows he was advanced to the grade of private/E-2 on 25 January 1970, and that this is the highest rank he attained while serving on active duty.  His record documents no acts of valor or significant achievement.  

4.  The record shows that on 7 March 1970, while on route to the Overseas Replacement Station, Fort Lewis, Washington, for further assignment to the Republic of Vietnam (RVN), the applicant departed absent without leave (AWOL).  He was dropped from the rolls on 6 April 1970, and remained away until returning to military control on 24 September 1970.  

5.  The record shows the applicant was in confinement from 24 September to 
18 October 1970, and again departed AWOL on 19 October 1970.  He was DFR on 14 December 1970, and remained away until being returned to military control on 22 April 1971.  

6.  The record is void of a separation packet containing the specific facts and circumstances surrounding the applicant’s discharge processing.  The record does contain an OSA Form 171 (Army Discharge Review Board (ADRB) Case Report and Directive) completed to document an ADRB hearing of the applicant’s case completed on 9 December 1980.  This document contains the following summary of the facts and circumstances concerning the applicant’s discharge:

	a.  In April 1971, court-martial charges preferred against the applicant for three periods of AWOL between 7 March 1970 and 19 April 1971;

   b.  On 22 April 1971, the applicant requested discharge for the good of the service under chapter 10, Army Regulation 635-200 (Enlisted Separations), after declining to consult with counsel;

   c.  On 29 April and 30 March 1971, recommendations for approval of discharge request from chain of command;

   d.  On 30 March 1971, Staff Judge Advocate review determined chapter 10 discharge packet legally sufficient; and 

   e.  On 6 May 1971, separation authority approval of request for discharge and direction that the applicant receive an undesirable discharge (UD).  
7.  The record also contains a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, on 14 May 1971.  It further shows he completed a total of 9 months and 22 days of active military service and accrued 327 days of time lost due to being AWOL.  

8.  On 9 December 1980, after thoroughly reviewing the applicant’s entire military record and the issues he presented, the ADRB determined the applicant’s discharge was proper and equitable.  It finally voted to deny the applicant’s request for an upgrade of the character of his discharge and not to change the authority and reason for his discharge.   

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  Paragraph 3-7a of the same regulation 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.  

11.  Paragraph 3-7b of the enlisted separations regulation 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 contention that his discharge should be upgraded because he was a young man who was married with two children has been carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.  
2.  The evidence of record confirms the applicant successfully completed basic combat training and AIT, which shows he had the maturity to serve had he chosen to do so.  It further shows he went AWOL rather than reporting for reassignment to the RVN.  He accrued 327 days of time lost due to three separate periods of AWOL. 

3.  The OSA Form 171 and DD Form 214 in the record confirm the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request discharge from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes him going AWOL to avoid assignment to the RVN, and his accrual of 327 days of time lost due to three separate periods of AWOL.  It further shows he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.

5.  The UOTHC discharge was normal and appropriate under the regulatory guidance in effect at the time and the applicant's overall record of undistinguished service was not sufficiently meritorious to support the separation authority issuing an HD or GD at the time of discharge, nor does it support an upgrade now.

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)                                         AR20100021727



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ABCMR Record of Proceedings (cont)                                         AR20100021727



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