IN THE CASE OF:	  

		BOARD DATE:	      26 May 2011

		DOCKET NUMBER:  AR20100027703 


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 under other than honorable conditions discharge be upgraded to honorable.  He also requests his foreign service tour in the Republic of Vietnam be added to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states he was young and immature at the time of his enlistment and subsequent service in the Republic of Vietnam.  His father was seriously ill with cancer and he went absent without leave (AWOL) to be with his family.  He did not know then that his type of discharge would affect him later in life.  He states he served his country honorably in the Republic of Vietnam and now suffers from diabetes, a service-connected illness.      

3.  The applicant provided two DD Forms 214 with separation dates of 15 October 1970 and 11 November 1971. 

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 born on 25 August 1952 and he was 17 years, 1 month, and 9 days old when he enlisted in the Regular Army on 3 October 1969 for a
3-year period.  His military personnel record contains the original DD Form 373 (Consent, Declaration or Parent or Legal Guardian) showing his parents understood and consented to his enlistment and verified his date of birth as 25 August 1952.   He completed his initial entry training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The applicant accepted nonjudicial punishment (NJP) for being AWOL from 16 March 1970 to 19 March 1970.  He was also convicted  by civil authorities for reckless driving and breaking and entering.  

4.  On 15 October 1970, he was honorably discharged from the Regular Army for the purpose of immediately reenlisting on 16 October 1970.  His second enlistment period was for another 3-year period.  

5.  On 22 January 1971, he was assigned to Company D, 2nd Battalion, 502nd Infantry, 101st Airborne Division with duty in the Republic of Vietnam.  His unit reported him AWOL on 30 June 1971.  He was apprehended by civilian authorities and returned to military control on 14 September 1971 at the U.S. Army Personnel Control Facility, Headquarters Command, Fort Jackson, SC. 

6.  On 15 September 1971 and again on 19 October 1971, court-martial charges were preferred against the applicant for being AWOL from his unit from 30 June 1971 to 14 September 1971 and from 21 September 1971 to 18 October 1971.  This equates to 3 months and 13 days of unauthorized absence.

7.  On 15 September 1971, he signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, indicating that he was making the request of his own free will and that he had been afforded the opportunity to speak with counsel prior to making this request.  In his request, he acknowledged he understood he could be discharged under other than honorable conditions, 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.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.

8.  On 4 November 1971, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He directed the applicant be issued an Undesirable Discharge Certificate and reduced to the lowest enlisted rank/grade of private (PV1)/E-1.

9.  On 11 November 1971, the applicant was discharged accordingly.  The DD Form 214 issued at the time confirms he completed a total of 1 year, 11 months, and 22 days of creditable active service with time lost from 21 September to 17 October 1971.  Item 22c (Record of Service [Foreign and/or Sea Service]) does not show his foreign service tour. 

10.  On 26 February 1982, the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.  However, on 2 August 1982, the applicant through his counsel withdrew his application. 

11.  References:

   a.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for preparing and distributing the DD Form 214.  The regulation states the DD Form 214 is a summary of a Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active duty service at the time of release from active duty, retirement, or discharge.  In pertinent part, it directed that total active duty outside the continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed be entered in Item 22c which in this case is United States Army Pacific (USARPAC) and item 30 (Remarks) should show the specific location of his overseas foreign service tour.

	b.  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 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.  

	c.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   d.  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.

	e.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  The maximum punishment for AWOL is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to grade E-1, and a total forfeiture of all pay and allowances.

DISCUSSION AND CONCLUSIONS:

1.  Based on the available evidence, the applicant served in the Republic of Vietnam from 22 January 1971 to 30 June 1971 when his unit reported him AWOL.

2.  During the timeframe the applicant served, Army Regulation 635-5 provided that a Soldier's DD Form 214, item 22c would show a Soldier's last overseas theater.  The applicant's foreign service tour was from 22 January 1971 through 30 June 1971 for a duration of 5 months and 9 days.  Therefore, it would be appropriate to correct his DD Form 214 with a separation date of 11 November 1971 to show in item 12c that his service in USARPAC was 00 year(s), 05 month(s) and 09 day(s) and add to item 30 "SERVICE IN VIETNAM FROM 19710122 TO 19710630."

3.  Based on his extended absences, he was charged under the Manual for Court-Martial for being AWOL in excess of 30 days.  This offense carried a maximum punishment of a punitive discharge, confinement for up to 18 months, and a forfeiture of pay and allowances.  In lieu of court-martial, he requested an administrative discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, to avoid the possibility of confinement at a Federal penitentiary or the U.S. Disciplinary Barracks, a felony conviction, and a dishonorable discharge.
4.  The applicant's 3 months and 13 days of AWOL is serious misconduct.  The type of discharge directed and the reasons for the discharge were appropriate considering all the known facts of the case.  The available record contains no evidence of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

5.  While the applicant's contention that his youth and immaturity contributed to his misconduct, his record contains a properly-constituted parental consent form  whereby he and his parents acknowledged he was entering the Armed Forces at the age of 17.  His rationale that he was young and immature is without merit for at the time of his AWOL he was nearly 19 years old.  

6.  In view of the foregoing, the available evidence is not sufficiently mitigating to warrant an upgrade of the applicant's discharge to a general or honorable discharge.

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 as follows:

* add to item item 22c of his DD Form 214, with a separation date of 11 November 1971, the entry "USARPAC 00 YEARS 05 MONTHS 09 DAYS"
* add to item 30 the entry "SERVICE IN VIETNAM FROM 19710122 TO 19710630"

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 upgrading his discharge characterization to honorable. 




      __________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)                                         AR20100027703



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ABCMR Record of Proceedings (cont)                                         AR20100027703



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