IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110001511 


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 general discharge (GD) to an honorable discharge (HD).  

2.  He states, in effect, he was really sick.  His state of mind and health had been affected by his service in Vietnam.  He never thought twice about serving his country and in fact he was awarded the Bronze Star Medal with “V” Device, Purple Heart, Air Medal, and Army Commendation Medal for his heroic efforts and meritorious service.  He served his country when thousands of others were evading the draft. 

3.  He states he fled the hospital twice, because he could not stand any more.  He is very sorry for what he did and will always regret it, but when he returned from Vietnam, he could not explain the anxiety and tension he felt.  He wishes that the Board will upgrade his discharge. 

4.  He did not provide any 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 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.  His records show he enlisted in the Regular Army on 23 June 1969 for 
3 years.  He completed the training requirements and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* Item 31 (Foreign Service) – he served in Vietnam from 25 November 1969 through 5 November 1970
* Item 33 (Appointments and Reductions) – the highest grade he attained while serving in the Army was specialist four (SP4)/E-4
* Item 38 (Record of Assignments) – he performed duties as a rifleman and machine gunner during his tour in Vietnam and received all "excellent" ratings in the areas of conduct and efficiency
* Item 38 – also shows he was assigned as a patient in the hospital on 
   11 January 1971 and went into an absent without leave (AWOL) status on
8 February 1971 and was dropped from the rolls in a deserter status on 
5 March 1971
* Item 40 (Wounds) – he sustained multiple fragment wounds to his back and both arms on 11 April 1970
* Item 41 (Awards and Decorations) – his significant awards included:

* Combat Infantryman Badge
* Purple Heart
* Bronze Star Medal with “V” Device
* Army Commendation Medal
* Air Medal
   
4.  His records are absent documentation related to his administrative separation action.  However, his record does contain a 1st Endorsement from the commander of the U.S. Army Personnel Control Facility and a 2nd Endorsement, from the commander of Headquarters Command, XVIII Airborne Corps and Fort Bragg.  Both endorsements contain the Subject:  Request for Discharge for the Good of the Service.  These documents show that an interview was conducted with the applicant and he stated he was aware of the nature of the interview and the consequences of an Undesirable Discharge Certificate; however, he desired elimination from the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service).

5.  The endorsements also show the applicant stated that his AWOL period was caused by financial problems at home and he could not adjust to Army life.  Both endorsements show he was recommended for a GD. 

6.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 11 January 1977 with an undesirable discharge.  The authority and reason was listed as chapter 10, Army Regulation 635-200 and he was assigned a Separation Program Designator (SPD) Code of JFS.  He completed a total of 1 year, 11 months, and 29 days of total active service.  He also had 
727 days of lost time.  

7.  He applied to the Army Discharge Review Board (ADRB) to upgrade his discharge to an HD.  On 13 June 1979, after reviewing his official record, the ADRB granted him partial relief by issuing him a GD.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 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.  Although an HD or a GD is authorized, an undesirable discharge was normally considered appropriate at the time.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

10.  Army Regulation 635-5-1 (SPD Codes) states that the SPD codes are three-character alphabetic combinations, which identify reasons for, and types of separation from active duty.  The SPD code of "JFS" is the correct code for Soldiers separating under chapter 10 of Army Regulation 635-200, in lieu of trial by court-martial.




DISCUSSION AND CONCLUSIONS:

1.  He contends his GD should be upgraded to an HD.

2.  His record contains evidence of acts of valor, special recognition and ratings of "excellent" preceding his period of AWOL.  He was charged with the commission of offenses punishable 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 requested discharge from the Army in lieu of trial by court-martial and stated at the time of his interview that he understood the consequences of an Undesirable Discharge Certificate; however, he desired elimination from the service under the provisions of chapter 10.  

3.  Therefore, in the absence of evidence to the contrary, the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  In 1979, his discharge was upgraded to a GD, under honorable conditions.  

5.  Based on his AWOL and desertion status which was a total of 727 days, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an HD.

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)                                         AR20110001511



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ABCMR Record of Proceedings (cont)                                         AR20110001511



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