IN THE CASE OF:	  

		BOARD DATE:	  17 May 2011

		DOCKET NUMBER:  AR20100026162 


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 his general discharge by upgraded to an honorable discharge.

2.  The applicant states he joined the military at the age of 18 and was honorably discharged in 1969.  During his service he received the Bronze Star Medal, Vietnam Service Medal with two bronze service stars, Republic of Vietnam Campaign Medal, and Army Good Conduct Medal.  Later, he reenlisted and prior to going to Vietnam he got married.  He sent money home for the bills; however, his spouse didn't pay the bills which caused him to be in debt.  His commander informed the applicant he would be subject to disciplinary action and could lose his rank if he did not take care of the situation.  After his request for an early discharge was denied, he felt his only option was to get a part-time job.  He contends he was young, depressed, overwhelmed, and made a poor decision.

3.  The applicant provides a letter from his previous employer and two letters of recommendation from previous supervisors.

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 on 12 August 1968 at age 18.  He was honorably discharged on 18 April 1969 for the purpose of immediate reenlistment.  He reenlisted on 19 April 1969.  He completed a tour in Vietnam and was reassigned to Fort Hood, TX.

3.  On 2 November 1972, his command preferred court-martial charges against him for being AWOL from 11 August 1972 to 31 October 1972. 

4.  On an unknown date, 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 a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

5.  In his request for discharge, he acknowledged he understood that if the discharge request was approved, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that 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.

6.  Trial defense counsel and the Staff Judge Advocate recommended he receive a general discharge.

7.  His brigade commander recommended he receive an Undesirable Discharge certificate.

8.  On 5 January 1973, the separation authority approved the applicant's request for discharge and directed he receive a general discharge certificate.  

9.  His discharge orders, dated 24 January 1973, show "Type of Discharge: UNDER HONORABLE CONDITIONS."
10.  He was discharged on 25 June 1973.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed a total of 3 years, 3 months, and 18 days of creditable active military service and he had 86 days of lost.  

11.  Item 13a (Character of Service) reads "UNDER CONDITIONS OTHER THAN HONORABLE."

12.  Item 13b (Type of Certificate Issued) reads DD Form 257A (General Discharge Certificate).

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge. 

14.  He provides verification of 21 years of employment and two letters of recommendation highlighting his experience and technical skills.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  Chapter 10.  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.  an under other than honorable conditions discharge is normally considered appropriate an undesirable discharge was considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7a.  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

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests his discharge be upgraded.

2.  His records show he was charged with the commission of an offense under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial 
by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

3.  The applicant contends he was young and made a poor decision.  The evidence shows the applicant was 22 years of age, married, and had completed a tour in Vietnam at the time of his offense, so his argument of immaturity is not compelling or convincing.

4.  He also contends he went AWOL in order to get a part-time job and pay off his debt.  It is unfortunate he chose to commit such a serious offense to resolve his problem but his actions do not serve as a valid excuse for his misconduct.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

5.  However, the applicant's DD Form 214 incorrectly shows his character of service as under conditions other than honorable; however, the evidence shows the separation authority directed that he receive an under honorable conditions (general) discharge; therefore, his DD Form 214 should be corrected.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by issuing the applicant a corrected DD Form 214, effective 25 June 1973, to show he received an under honorable conditions (general) discharge.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 


denial of so much of the application that pertains to the upgrade of his under honorable conditions (general) discharge to an honorable discharge. 




      ____________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)                                         AR20100026162





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ABCMR Record of Proceedings (cont)                                         AR20100026162



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