IN THE CASE OF:	  

		BOARD DATE:	    20 September 2011

		DOCKET NUMBER:  AR20110005104


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, in effect, an upgrade of his undesirable discharge to honorable discharge.

2.  The applicant states:

* he served honorably for over 3 years
* his DD Form 214 showed he had lost time from February 1968 through November 1969 and he was in Vietnam at that time
* he now realizes that being absent without leave (AWOL) was not the course he should have chosen

3.  The applicant provides copies of the following:

* two DA Forms 20 (Enlisted Qualification Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 4 (Enlistment Record – Armed Forces of the United States)
* Certificate of Training for the Potential Course, 68-4, 24th Infantry Division Noncommissioned Officer Academy
* Special Court-Martial Order Number 635
* Special Orders Number 177
* two DA Forms 268 (Report of Suspension of Favorable Personnel Actions)
* 
a statement from the supply officer pertaining to the applicant’s AWOL status
* two DA Forms 188 (Extract Copy of Morning Report)
* DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Conviction)

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 Army on 13 September 1966.  He completed training as a truck mechanic.  He arrived in Vietnam on 3 March 1968.  He departed Vietnam en-route to the U.S. on 2 March 1969.

3.  On 10 November 1969 the applicant was convicted by a summary 
court-martial of being AWOL from 14 October until 25 October 1969 and 3 November until 4 November 1969.

4.  The applicant was convicted by a general court-martial on 15 June 1970 of being AWOL from 5 January until 26 January 1970 and 10 February until 1 June 1970.

5.  DA Form 268 dated 12 July 1970 shows that the applicant went AWOL again on 11 July 1970.  However, on 20 January 1971 the applicant was notified that charges were pending against him for being AWOL from 15 October 1970 until 20 January 1971.  He acknowledged receipt of the notification.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  


6.  In his request for discharge, he elected not to submit a statement in his own behalf and he acknowledged he understood the following:

* if his request for discharge was accepted, he could be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits
* he could be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

7.  The appropriate authority approved the request for discharge on 4 February 1971 and directed the issuance of an undesirable discharge.  On 26 February 1971, the applicant 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.  He had completed 2 years, 4 months, and 26 days of total active service.

8.  The applicant’s DD Form 214 shows his non pay periods time lost as February 1968 until November 1969 and 15 October 1970 until 20 January 1971.

9.  The applicant’s DA Form 20 show the following:

* 19 February until 27 February 1968 – AWOL
* 14 October until 24 October 1969 – AWOL
* 3 November 1969 – AWOL
* 5 January until 26 January 1970 – AWOL
* 27 January until 2 February 1970 – Civil Confinement
* 3 February until 10 February 1970 – Confinement
* 10 February 1970 – AWOL
* 11 February until 31 May 1970 – AWOL
* 1 June until 8 July 1970 – Confinement
* 11 July 1970 – AWOL

10.  His records do not show that he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

11.  The applicant submits copies of documents contained in his official military record.


12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 10 states 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, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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.
   
   c.  Paragraph 3-7b states 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 contentions have been noted.  His supporting evidence has been considered.

2.  His records show that he enlisted in the Army on 13 September 1966 and on 14 October 1969 he began going AWOL.  His records also show that he continued to go AWOL until he was discharged on 26 February 1971.

3.  Charges were pending against him for being AWOL when he submitted his request for discharge for the good of the service in lieu of trial by court-martial.  The fact that he had 2 years, 4 months, and 26 days of total active service is not a basis for upgrading his discharge.

4.  The applicant’s contention regarding the non-pay periods lost time shown on his DD Form 214 has been considered.  The applicant’s record does not show he was AWOL from February 1968 through November 1969.  This issue is also not a basis for upgrading his discharge as his service was not honorable.  His record 

shows he was convicted by a summary court-martial and a special court-martial as a result of his going AWOL.  He had charges pending against him for being 
AWOL.  

5.  The type of discharge he received appropriately reflects his overall record of service.  Considering the nature of his offenses the type of discharge he received was not too severe.  His service simply did not rise to the level of a general or an honorable discharge.

6.  In view of the foregoing, his request should be denied.

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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20110005104



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