BOARD DATE:	    6 October 2011

		DOCKET NUMBER:  AR20110006331 


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 an upgrade of his undesirable discharge (UD) to a general discharge.

2.  He states that in July 1971 while serving in Vietnam he decided to take his R and R (rest and recuperation) time and come home on leave having already seen quite a bit of action.  He thought he would cheer up his mother by coming home just to show her that he was alright.  While at home he got sick with malaria and was rushed to the nearest military hospital.  In August 1971, while he was still in the hospital, his mother brought him a letter from his commander officer (CO) stating that he was considered a deserter.  He asked his doctor to inform his CO of his whereabouts. 

3.  He also states that by the time he was released from the hospital his ticket had expired.  He was told that he would have to pay his own way back to Vietnam.  The military had already stopped his monthly paycheck and he had no other way of paying for the ticket.  It wasn’t that he didn’t want to go back, but he had no funds.  He knows he did wrong by not trying harder, but he was scared and realized how it was affecting his life.  He has regretted not being able to complete his service to his country.  

4.  He provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).


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 military records show he was inducted into the Army of the United States on 14 July 1970.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was advanced to pay grade E-3 on 27 November 1970.  He served in Vietnam from 5 January 1971 through on or about 12 July 1971.

3.  He was reported absent without leave (AWOL) on 12 July 1971 and dropped from the rolls as a deserter on 29 August 1971.  He was apprehended by civilian authorities and returned to military control on 30 October 1973.  

4.  On 2 November 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, Fort Ord, CA.  He was charged with one specification of being AWOL from 12 July 1971 through 30 October 1973.

5.  On 5 November 1973, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged UOTHC and furnished a UD Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) .  He waived his rights and elected to submit a statement in his own behalf.  

6.  In his statement, he stated that he didn’t mind the Army it was just that people were always trying to do him wrong.  He guessed if he had to stay he would just have to go AWOL again so he would get a discharge out of it.  He again 
acknowledged he understood that the issuance of a UD would make him ineligible for VA benefits.  He was willing to accept the UD because he had other problems at home he had to take care of very fast.

7.  On 15 November 1973, the applicant’ unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  He stated that while on leave in the United States, the applicant was hospitalized for treatment for malaria.  His leave was extended until 9 August 1971.  He had been released from the hospital on 4 August but never returned to Vietnam.  The applicant decided against returning to Vietnam because he got a good job and decided he would stay with his mother and assist her.  The applicant was counseled regarding possible application for a hardship discharge and compassionate reassignment, but felt he did not have sufficient grounds at that time.   

8.  On 20 December 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

9.  He was discharged in pay grade E-1 on 28 December 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and issued a UD.  His service was characterized as UOTHC.  He was credited with completing 1 year,1 month, and 14 days of active service with 840 days of time lost.

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

11.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

12.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted; however, on 2 November 1973, he was charged with being AWOL from 12 July 1971 through 30 October 1973.  Upon receipt of the charges he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  

2.  At the time, he also acknowledged that he could be discharged UOTHC and furnished a UD Certificate.  He also stated, in effect he would go AWOL again in order to be discharged.  His unit commander stated that the applicant had gone home on leave and was hospitalized for treatment of malaria.  His leave was extended; however, when he was released from the hospital he never returned to Vietnam.  The applicant decided against returning to Vietnam because he got a good job and decided he would stay with his mother and assist her.  The applicant was counseled regarding possible application for a hardship discharge and compassionate reassignment, but felt he did not have sufficient grounds at that time.   

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

4.  Without evidence, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting his request.







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)                                         AR20110006331





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ABCMR Record of Proceedings (cont)                                         AR20110006331



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