BOARD DATE: 5 May 2011
DOCKET NUMBER: AR20100025099
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, in effect, an upgrade of his undesirable discharge to an honorable or a general discharge.
2. The applicant states he was drafted as a child, taken to Vietnam, taught to kill for his country, and had trouble conforming to military life. He states he was asked to obey someone who had never been where he had been.
3. The applicant provides 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 30 January 1970, the applicant enlisted in the Regular Army (RA) at age 19. He completed training as a helicopter repairman.
3. The applicant arrived in Vietnam on 8 October 1970. He departed Vietnam en-route to the U.S. on 7 October 1971.
4. On 28 June 1972, the applicant was notified that he was being recommended for discharge for being absent without leave (AWOL) from 11 November 1971 to 21 June 1972. He acknowledged receipt of the notification and after consulting with counsel, he submitted a 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.
5. The appropriate authority approved the request for discharge on 21 July 1972. On 31 July 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.
6. A review of the records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.
7. Army Regulation 635-200 (Personnel Separations) 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.
8. Army Regulation 635-200 provides at:
a. paragraph 3-7a 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; and
b. paragraph 3-7b 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.
DISCUSSION AND CONCLUSIONS:
1. The applicants contentions have been noted.
2. The applicant was not drafted into the RA. He enlisted in the RA at age 19. His records show he was 21 years old at the time he went AWOL. There is no evidence in his record showing that he was discharged as a result of his inability to conform when he was asked to obey orders given by someone.
3. He submitted a request for discharge after being notified that charges were pending against him for being AWOL. He has not shown error in the type of discharge that he received.
4. In view of the foregoing, the applicants request should be denied.
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) AR20090005994
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