IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110004615 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states drugs and alcohol were the reason he wanted to get out of Vietnam and the Army.

3.  The applicant provided a 2-page self-authored statement.

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 enlisted in the Regular Army on 15 May 1969.  He completed basic training and he was awarded military occupational specialty 76N (Procurement Specialist).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  His record contains a DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record) - Record of Court-Martial Conviction) that shows the applicant was convicted by a special court-martial on 12 January 1971 of being absent without leave (AWOL) from on or about 3 June 1970 to on or about
28 December 1970.

4.  Records show the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 
10 September 1971 for being AWOL from on or about 1 September 1971 to on or about 10 September 1971.

5.  On 20 March 1973, charges were preferred against the applicant for being AWOL from on or about 8 March 1972 to on or about 23 February 1973.

6.  On 22 March 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under conditions other than honorable of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested 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.

7.  In his request for discharge, the applicant indicated he understood that by requesting a discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  The applicant signed a DA Form 2823 (Witness Statement) with his request for discharge.  He stated he been on drugs since entering the Army and that he was still having flashbacks from using LSD.  He also felt he could no longer stand the military service, he didn't like the Army anymore, and he should be released.  He further stated he did not like being told what to do or being pushed around.  All he wanted was out of the Army for good.


9.  The applicant's immediate and intermediate commanders recommended approval of his discharge request and recommended an Undesirable Discharge Certificate.

10.  On 12 April 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  On 19 April 1973, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was issued an Undesirable Discharge Certificate with service characterized as under conditions other than honorable.  It also show he completed 2 years and 20 days of total active service with 396 days of time lost due to AWOL and confinement.

11.  The applicant applied to the Army Discharge Review Board for an upgrade of his discharge on two separate occasions.  After a review of his military records and all other available evidence, his upgrade appeals were denied on 29 April 1977 and 29 October 1981.

12.  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, 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 an individual who was discharged for the good of the Service.  

13.  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 request for an upgrade of his undesirable discharge to a general discharge was carefully considered and determined to be without merit.


2.  The applicant's record shows 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.

3.  Based on his record of indiscipline, which includes 396 days of time lost due to AWOL and confinement, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his serviced unsatisfactory.  Therefore, the applicant is not entitled to a general discharge.

4.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20110004615



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ABCMR Record of Proceedings (cont)                                         AR20110004615



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