BOARD DATE:	  5 April 2011

		DOCKET NUMBER:  AR20100023906 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he believes he served his country to the best of his ability and did what was requested of him in an honorable manner.  He further states because he believes he served his country well in a time of need he asks to be rewarded by an upgrade of his discharge to honorable.

3.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a Standard Form (SF) 180 (Request Pertaining to Military Records)
* two letters from the Department of Veterans Affairs (VA)

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 enlisted in the Regular Army (RA) on 24 October 1969 and he held military occupational specialty (MOS) 11E (Armor Crewman).  He was honorably discharged for the purpose of immediate reenlistment on 10 August 1970.  The DD Form 214 he was issued for this period of service shows he completed 9 months and 17 days of total active service.

3.  He reenlisted in the RA on 11 August 1970 and he held MOS 64B (Heavy Vehicle Driver).

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 28 August 1970, for being absent without leave (AWOL) from 16 to 21 August 1970
* on 26 October 1970, for being AWOL from 11 to 25 October 1970

5.  He served in Vietnam from 6 November 1970 to 1 November 1971 while assigned to the 515th Transportation Company and the 57th Transportation Company.

6.  While in Vietnam, he received NJP under the provisions of Article 15, UCMJ, as follows:

* on 14 January 1971, for disobeying a lawful order
* on 7 October 1971, for sleeping while on guard duty

7.  On 1 November 1971, he departed Vietnam en route to Fort Campbell, KY.  He was subsequently assigned to the 34th Transportation Company on             27 December 1971.

8.  On 3 April 1972, he was reported AWOL from his assigned unit at Fort Campbell and on 9 May 1972, he was dropped from the rolls (DFR) of his unit.  On 27 June 1972, he was apprehended by civil authorities and he was returned to military control on the same date.


9.  On 29 June 1972, court-martial charges were preferred against him for one specification of being AWOL from 3 April 1972 to 27 June 1972.

10.  On 8 July 1972, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, 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.

11.  Following consult with legal counsel, he 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.  In a statement submitted in his own behalf, he stated he did not care for the service, he did not believe it was good for him, and he did not want to stay in the service.

12.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

13.  On 8 July 1972, his chain of command recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

14.  On 26 September 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The separation authority further directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

15.  On 5 December 1972, he was discharged accordingly.  The DD Form 214 he was issued for this period of service shows he completed 2 years, 10 months, and 4 days of total active service with 85 days of time lost.

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

17.  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 VA 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.

18.  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.

19.  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 evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. 

2.  His record of service shows he went AWOL on three different occasions and received NJP on two other occasions.  He had been AWOL 85 days when he was returned to military control on 27 June 1972.  He was subsequently charged with being AWOL which was the basis for his voluntary discharge.


3.  Based on his record of misconduct, 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.  Therefore, he is not entitled to an honorable discharge or a general discharge.

4.  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)                                         AR20100023906



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ABCMR Record of Proceedings (cont)                                         AR20100023906



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