IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100023804


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 a discharge upgrade.

2.  The applicant states he was in Vietnam when he was given 14 days of leave from 5-18 March 1972 to be with his ailing mother in Copperas Cove, TX.  Her heart condition had not improved and he was granted a leave extension from 19 March through 1 April 1972.  Since his mother was still ill, he did not return to his unit.  His unit was in constant contact with him.  He was informed he was considered absent without leave (AWOL) and he was advised to turn himself in to military authorities, which he did on 4 May 1972.

3.  The applicant states he later learned he could have signed in at the nearest Army post – Fort Hood, TX – and would have been able to be near his mother.  Unfortunately, no one told him of that option back in 1972, so he did the only thing he could.  He adds he was a good Soldier and he served in Vietnam for 6 months.  He needs an upgrade now because he has Agent Orange-related medical conditions of blood circulation problems, bilateral hearing loss, bilateral cataracts, blood disorder, high blood pressure, memory loss, prostate cancer, diabetes, and skin cancer.

4.  The applicant provides:

* self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* discharge orders
* Military Assistance Command Vietnam (MACV) Form 439-R (Permissive Orders for Out-of-Country Travel)
* Office of the Staff Judge Advocate (SJA), III Corps and Fort Hood, memorandum to Commanding General (CG), subject:  Chapter 10 Discharge
* approval of chapter 10 discharge, dated 25 May 1972
* chapter 10 discharge packet

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 was a 2-year Army of the United States inductee.  His DA Form 20 (Enlisted Qualification Record) shows he was inducted on 13 January 1971.  He underwent basic and advanced individual training at Fort Ord, CA, and was awarded military occupational specialty (MOS) 36K (wireman).  He was ordered to Vietnam, serving there from on or about 22 August 1971 to on or about 5 March 1972 when he departed Vietnam in an authorized leave status.

3.  At Fort Hood court-martial charges were preferred against the applicant for being AWOL from 2 April 1972 to 4 May 1972 and, after consulting with legal counsel, he requested separation for the good of the service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  His counsel submitted a statement in behalf of the applicant stating:

* he is the child of a retired Army sergeant residing in Copperas Cove, TX
* he has a ninth grade education
* his mother has medical problems
* after basic and advanced individual training, he tried unsuccessfully for a hardship discharge or a compassionate reassignment to Fort Hood
* he went to Vietnam
* he was given a 14-day leave because of his mother's medical problems
* his leave was extended another 14 days
* he has trouble adapting to the Army and feels he would be a detriment if he were to be retained

4.  On 25 May 1972, the III Corps and Fort Hood SJA recommended approval of the applicant's request for discharge for the good of the service in lieu of trial by court-martial.  The memorandum stated the applicant was apprehended and returned to military control.

5.  On 25 May 1972, the CG approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, and directed that he receive an undesirable discharge (UD).

6.  The applicant provided a MACV Form 439-R showing he went on rest and recuperation (R&R) leave, not emergency leave, from 5-18 March 1972.  The form shows he was only authorized to go to Hawaii and he was specifically prohibited from leaving Hawaii for the continental United States (CONUS).

7.  U.S. Army Vietnam policy afforded each Soldier serving in Vietnam one R&R leave to one of the following areas where R&R was authorized:  Hawaii, Japan, Philippines, Australia, Hong Kong, Singapore, and Taiwan.  Additionally, one 
7-day leave could be granted while serving in Vietnam.  In some cases a Soldier may have been required to obtain either a passport or a visa.  The following is a list of areas authorized for leave gleaned from an Internet website (http://www.2nd60th.org/2-60Policy.htm):

Country	Passport		Visa

Japan	No		No
Korea	Yes		Yes
Malaysia	Yes		Yes
Okinawa	No		No
Philippines	No		No
Singapore	Yes		Yes
Thailand	Yes		Yes

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

	b.  Paragraph 3-7b states 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 requests a discharge upgrade.

2.  The applicant was AWOL from his unit in Vietnam.  Court-martial charges were preferred and after consulting with counsel, he requested discharge for the good of the service in lieu of trial by court-martial under chapter 10, Army Regulation 635-200.

3.  The facts of this case do not add up, for example:

* the MACV Form 439-R shows the applicant went on R&R leave to Hawaii from 5-18 March 1972
* travel from Hawaii to CONUS was expressly prohibited
* the applicant states his leave was to visit his ailing mother in TX and was extended through 1 April 1972
* AWOL charges were from 2 April 1972 to 4 May 1972
* he states he turned himself in to military authorities
* the SJA states he was apprehended

4.  The applicant's version of events is accepted; however, his reason for being AWOL to be with his ailing mother does not mitigate his behavior sufficiently to warrant an upgrade of his discharge.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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 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)                                         AR20100023804



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ABCMR Record of Proceedings (cont)                                         AR20100023804



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