IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110001825 


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 to a general discharge.

2.  The applicant states:

* he served for the full period of his obligation (2 years and 1 day)
* he served in Vietnam from 17 August 1968 to 27 February 1969 and is now suffering from diseases associated with Agent Orange
* his active duty was honorable and in good faith to his country
* his absence without leave (AWOL) was outside his active service obligation
* he was AWOL due to a family hardship (marital problems and child support)

3.  The applicant provides no additional 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.  He was inducted into the Army of the United States on 12 May 1966.  He completed his training and was awarded military occupational specialty 76Y (unit and organization supply specialist).

3.  On 27 September 1966, he was convicted by a special court-martial of being AWOL from 20 June to 2 September 1966.  He was sentenced to be reduced to E-1, to forfeit $32.00 pay per month for 6 months, and to be confined at hard labor for 5 months.

4.  On 20 June 1968, he was convicted by a special court-martial of being AWOL from 25 June 1967 to 21 May 1968.  He was sentenced to be confined at hard labor for 6 months.

5.  He served in Vietnam from 17 August 1968 to 27 February 1969.

6.  On 26 May 1969, he was convicted by a special court-martial of being AWOL from 27 February 1969 to 10 April 1969.  He was sentenced to perform hard labor without confinement for 3 months and to be reduced to E-2.

7.  On 30 January 1970, he was convicted by a special court-martial of being AWOL from 6 October 1969 to 5 January 1970.  He was sentenced to forfeit $25.00 pay per month for 3 months and to be confined at hard labor for 45 days.

8.  On 11 May 1970, he was convicted by a special court-martial of being AWOL from 8 April 1970 to 27 April 1970.  He was sentenced to forfeit $50.00 pay per month for 5 months and to be confined at hard labor for 5 months.

9.  On 10 August 1970, charges were preferred against the applicant for being AWOL from 14 June to 23 July 1970 while on parole and violating the conditions of his parole.  Trial by special court-martial was recommended.

10.  On 12 August 1970 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

11.  On 2 September 1970, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

12.  He was discharged on 2 September 1970 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He completed a total of 2 years and 1 day of total active service with 840 days of lost time.

13.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

15.  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.  He contends his active duty service was honorable and his AWOL was outside his active service.  However, the evidence shows he received five special court-martial convictions for AWOL during his active duty service.  He received his first special court-martial in September 1966, 4 months after his induction.

2.  He also contends he was AWOL due to family hardship and marital problems.  However, there is no evidence he sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures prior to being AWOL.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  Since his record of service included five special court-martial convictions and 840 days of lost time, his record of service was not satisfactory.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general 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 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)                                         AR20110001825



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001825



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1