IN THE CASE OF:	  

		BOARD DATE:	  26 July 2011

		DOCKET NUMBER:  AR20110001029 


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 an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he served honorably in combat for a year in Vietnam as a rifleman.  While at home on leave his former friends and neighbors treated him with disdain and disgust.  This caused him to become disillusioned and confused. He did not report to his next duty station for about 22 months but he turned himself at Ft Carson.  He was counseled by an officer and offered a discharge which he accepted while in his confused state.  He also states that at the time he was not aware of the punitive nature of the discharge.  He believes it is too severe of a discharge considering his 1-year of infantry combat service in Vietnam.  He states it was only recently that he became aware that he could request consideration for an upgrade.

3.  The applicant provides no evidence.

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's records show he was inducted into the Army of the United States on 8 November 1967 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  His records indicate he served in Vietnam with the 199th Infantry Brigade for an unknown period and he was awarded the Combat Infantryman Badge on 
14 May 1968 while serving with this unit.  

4.  On 23 May 1969, he departed Fort Carson, CO, in an absent without leave status.  He ultimately returned to military control on 4 March 1971. 

5.  On 7 April 1971, court-martial charges were preferred against the applicant for one specification of being AWOL from 23 May 1969 to 4 March 1971.

6.  On 8 April 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; 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 a 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 – Enlisted Personnel).

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

8.  On 14 April 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 20 April 1971.
9.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged for the good of the service in lieu of a court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 1 year, 8 months, and 2 days of creditable active military service and he had 650 days of lost time.

10.  On 8 August 1989, the ABCMR denied his petition to upgrade his discharge to a fully honorable discharge.

11.  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(s) charged, the 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.  At the time, an Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show he 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.  He voluntarily, willingly, and in writing, requested a discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

2.  There is no evidence in his records that he encountered challenges or difficulties upon his return from Vietnam or that he addressed these issues with his chain of command at the time.  Even if he did encounter difficulties, there were many other legitimate avenues he could have used to resolve the situation rather than going AWOL.  

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20110001029



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ABCMR Record of Proceedings (cont)                                         AR20110001029



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