IN THE CASE OF:	  

		BOARD DATE:	  31 May 2011

		DOCKET NUMBER:  AR20100028305 


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 undesirable discharge be upgraded.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his time served in Vietnam as “23 June 1969 through 23 June 1970” instead of “23 June 1969 through 19 January 1970.” 

2.  He states his time served in Vietnam was not 23 June 1969 through 19 January 1970.  

3.  He provides his DD Form 214.   

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 20 January 1969 for a period of three years.  

3.  His DA Form 20 (Enlisted Qualification Record) shows he arrived in Vietnam on 23 June 1969.

4.  On 25 April 1970, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for failing to go to his appointed place of duty and failing to obey a lawful order.  The Record of Proceedings under Article 15, Uniform Code of Military Justice is not available.  

5.  His DA Form 20 shows he departed Vietnam on 18 June 1970.  

6.  On 26 April 1971, charges were preferred against him for being absent without leave (AWOL) from 16 September 1970 to 29 March 1971 and disobeying a lawful order.  

7.  He consulted with legal counsel and he voluntarily 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 court-martial.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He submitted statements in his own behalf.  He stated he:

* went AWOL because he wanted to get out of the Army
* would continue going AWOL if he did not get out
* was ten years old when his mother died and didn’t get along with his father
* received one Article 15 and had no previous court-martial

8.  The separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.

9.  He was discharged on 28 June 1971.  His DD Form 214 incorrectly shows he completed 1 year, 11 months, and 11 days of active military service with 209 days of time lost.

10.  Item 30 (Remarks) of his DD Form 214 shows he served in Vietnam from 23 June 1969 through 19 January 1970.  Item 22c (Foreign and/or Sea Service) shows 6 months and 27 days of foreign service in the U.S. Army Pacific (USARPAC).  
11.  His service record contains a DD Form 215 (Correction to DD Form 214), dated 14 December 1971, which amended item 22c to show he completed 11 months and 27 days of foreign service in USARPAC.  

12.  On 8 January 1973, the Army Discharge Review Board denied his request for an upgrade of his discharge.  

13.  His service record contains a DD Form 215, dated 12 February 1973, which amended items:

* 22a(1) (Net Service This Period) - 1 year, 10 months, and 25 days
* 22a(3) (Total) - 1 year, 10 months, and 25 days
* 22b (Total Active Service) - 1 year, 10 months, and 25 days
* 22c - 11 months and 26 days
* 26a (Non-Pay Periods Time Lost) - 16 September 1970 through 28 March 1971
* 30 (Remarks) – 194 days lost under Title 10, U.S. Code 972 from 16 September 1970 through 28 March 1971 and Vietnam Service:  23 June 1969 through 18 June 1970

14.  On 7 April 1980, the Army Discharge Review Board again denied his request for an upgrade of his discharge.  

15.  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.  

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.
17.  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 applicant's voluntary request for discharge 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.  The evidence of record does not indicate the request was made under coercion or duress.

2.  His service record shows he received one Article 15 and was AWOL for 194 days.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or honorable discharge.

3.  His contention that his time served in Vietnam was not 23 June 1969 through 19 January 1970 is acknowledged.  His DD Form 215, dated 12 February 1973, shows his Vietnam service was amended to show 23 June 1969 through 18 June 1970.  His service record is void of evidence which shows he served in Vietnam from 23 June 1969 through 23 June 1970.  Therefore, there is no basis to further amend his Vietnam service.  A copy of the two DD Forms 215 will be provided to him.

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)                                         AR20100028305





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ABCMR Record of Proceedings (cont)                                         AR20100028305



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