IN THE CASE OF:	  

		BOARD DATE:	    13 September 2011

		DOCKET NUMBER:  AR20110003403 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states:

* He believes a reenlistment (RE) code of 3B and a reduction in rate should have been and was punishment enough for the offense he committed
* He served honorably and faithfully in Vietnam
* He is seeking services at the Department of Veterans Affairs (DVA) 

3.  The applicant provides no documentary 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 enlisted in the Regular Army on 11 June 1969 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11B (infantryman).  He served in Vietnam from 24 November 1969 to 2 November 1970 and in Germany from 2 February 1971 to 26 August 1971.   

3.  On 27 October 1971, nonjudicial punishment was imposed against the applicant for being absent without leave from 27 September 1971 to 25 October 1971. 

4.  He went AWOL on 1 November 1971 and returned to military control on 
23 January 1978.  On 24 January 1978, charges were preferred against the applicant for the AWOL period.

5.  On 25 January 1978, he consulted with counsel and requested 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.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration, he would be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* He wanted a chapter 10 discharge because he cannot adjust again to military life
* He deserved a general discharge because of his military service prior to going AWOL
* He served for 28 months with a good record
* He never received an Article 15
* He served in Vietnam and Germany
* He went AWOL because he was harassed by officers in Germany because they didn't approve of the company he kept after duty hours and  he could not get promoted
* He did not get into any trouble while he was AWOL for 7 years 

6.  On 21 March 1978, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.
7.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 5 April 1978 under the provisions of Army Regulation 635-200, chapter 10.  He completed a total of 2 years, 6 months, and 4 days of creditable active service and 2271 days of lost time.

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

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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.  His contention an RE code of 3B and a reduction in rate was punishment enough for the offense he committed relates to legal matters that could have been addressed and conclusively adjudicated in a court-martial/appellate process.  However, he voluntarily requested discharge in lieu of trial by court-martial.  

2.  He contends he is seeking services at the DVA.  However, a discharge is not changed for the purpose of obtaining DVA benefits.

3.  His service in Vietnam was considered.  However, his record of service included one NJP and 2271 days of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

4.  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.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20110003403





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ABCMR Record of Proceedings (cont)                                         AR20110003403



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