BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110004690 


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 (UD) be upgraded to an honorable discharge.  

2.  The applicant states during the period he was absent without leave (AWOL) just prior to his redeployment for a second tour in the Republic of Vietnam (RVN) his mother passed away.  He claims his chain of command at the time would not support his efforts to return home and he felt this decision was made without informing him of his options.  He states this action on the part of his chain of command angered and disappointed him.

3.  The applicant further states that he served his first tour in the RVN between January and November 1970, during which time he was assigned to a sniper recon team who were sent out in advance of units entering the area of operations.  He claims he supported all military missions and never failed as a Soldier.  He claims his chain of command failed to support his efforts to return home to attend to funeral arrangements for his mother and to mourn with his family which caused him to take matters into his own hands.  He concludes by stating he accepts responsibility for his actions but his chain of command caused him great pain and disappointment which still affects him today.  

4.  The applicant provides the following documents in support of his application:

* Self-Authored Statement
* DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge), dated 20 January 1971 and 12 July 1973
* Army Commendation Medal (ARCOM) Award Orders
* Combat Infantryman Badge (CIB) Award Orders

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’s record shows he initially entered active duty in the Regular Army (RA) on 20 January 1969, and was trained in and awarded military occupational specialty (MOS) 11D (Armor Recon Specialist).  On 20 January 1971, he was honorably discharged for the purpose of immediate reenlistment, and on 21 January 1971, he reenlisted in the RA for 6 years. 

3.  The applicant’s record shows he was promoted to the rank of sergeant/E-5 on 11 October 1971, and that this is the highest rank he attained while serving on active duty.  It also shows he served in the RVN from 22 January 1970 through 22 November 1970, and that during this tour, he was assigned to Headquarters and Headquarters Company (HHC), 1st Battalion, 50th Infantry Regiment, performing duties in MOS 11D as a scout observer. 

4.  The record shows the applicant earned the following awards during his active duty tenure:

* National Defense Service Medal (NDSM)
* Vietnam Service Medal (VSM)
* CIB
* 1 Overseas Service Bar
* RVN Campaign Medal with 60 Device
* ARCOM
* 2nd Class Machine Gun Badge
* Expert Marksmanship Qualification Badge with Rifle Bar.  

5.  The applicant’s disciplinary history includes his accrual of 587 days of time lost during two separate periods of AWOL between 26 February 1971 and 
11 November 1973, and a period of confinement from 12 November through 
7 December 1973.  It also includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 March 1971, for being AWOL from 26 February to 2 March 1971.  

6.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does include a properly constituted DD Form 214 that shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service-in lieu of trial by 
court-martial.  It further shows he completed a total of 3 years, 3 months, and 
9 days of creditable active military service and accrued 587 days of time lost due to AWOL and confinement.  

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15 year statute of limitations.  

8.  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 (UOTHC) discharge is normally considered appropriate.  At the time of the applicant’s discharge an UD was issued for members separating UOTHC.  

9.  Paragraph 3-7a of the same regulation 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.  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 to upgrade his discharge because he was denied options to return home to make funeral arrangements for his mother and time to mourn with his family has been carefully considered.  However, there is no evidence to support this claim.

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include various documents and a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The documents in the record and the applicant's DD Form 214 confirm he 
was discharged in lieu of trial by court-martial under the provisions of
Army Regulation 635-200, chapter 10.  In connection with this type discharge, the applicant would have been charged with the commission of an offense punishable with a punitive discharge under the UCMJ.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In the absence of information to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant’s record properly documents his honorable service in the RVN in the first DD Form 214 he was issued upon his reenlistment in January 1971.  However, his record confirms he accrued 587 days of time lost due to AWOL and confinement during the enlistment period under review, and that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge. 

5.  Based on the applicant's misconduct during the period of enlistment under review, the UD he received was normal and appropriate under the regulatory guidance in effect at the time.  Therefore, there is insufficient evidentiary basis to support an upgrade of his UD at this time.  








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)                                         AR20110004690



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ABCMR Record of Proceedings (cont)                                         AR20110004690



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