IN THE CASE OF:	  

		BOARD DATE:	  18 August 2011

		DOCKET NUMBER:  AR20110002912 


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 that his general discharge be upgraded to an honorable discharge. 

2.  The applicant states that he desires an upgrade of his general discharge to an honorable discharge so he can move on with his life.  He goes on to state that he went absent without leave (AWOL) because he was afraid to tell anyone about accidently killing his best friend during a firefight on 26 May 1967.  He kept this secret until about 4 months ago. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a copy of a Department of Veterans Affairs (VA) letter, dated 3 March 1981, indicating that he gave the impression of suffering from Delayed Stress Syndrome.  

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 inducted on 13 October 1966.  He completed basic training at Fort Gordon, Georgia and advanced individual training as a light weapons infantryman at Fort Jackson, South Carolina before being transferred to Vietnam on 24 March 1967.  He was advanced to the pay grade of E-4 on 13 June 1967.

3.  He departed Vietnam on 15 March 1968 for assignment to Fort Rucker, Alabama with a reporting date of 27 March 1968; however, he failed to report as ordered and he was reported as being in an AWOL status.  He remained absent in a desertion status until he was returned to military control at Fort Jackson, South Carolina on 18 November 1980.  He was subsequently transferred to Fort Bragg, North Carolina, where charges were preferred against him for the absence. 

4.  On 26 November 1980, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive an under other than honorable conditions discharge and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.
 
5.  The appropriate authority approved the request for discharge on 26 January 1981 and directed that he be discharged under other than honorable conditions.

6.  Accordingly, on 3 February 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had completed 1 year, 5 months and 27 days of total active service and he had 4,619 days of lost time due to being AWOL (200 days were prior to his expiration term of service date).   

7.  On 24 February 1981, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to fully honorable and was granted a personal appearance before the ADRB travel panel in Charlotte, North Carolina on 14 January 1983.
8.  After reviewing the testimony and evidence presented, the ADRB determined that based on the applicant’s combat record, his discharge was inequitable and voted to upgrade his under other than honorable conditions discharge to a general discharge) on 3 February 1983.  Accordingly, he was issued a General Discharge Certificate.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or 
she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  Notwithstanding the actions of the ADRB, the applicant's voluntary request for separation 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.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances. 

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the extensive length of his absence at the time.  While his service is appreciated, it simply does not rise to the level of a fully honorable 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)                                         AR20110002912



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ABCMR Record of Proceedings (cont)                                         AR20110002912



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