IN THE CASE OF:	  

		BOARD DATE:	  13 December 2011

		DOCKET NUMBER:  AR20110011625 


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 to a general discharge.

2.  He states he knows it was wrong to go absent without leave (AWOL) three times.  He states his military service was exemplary in Vietnam and Japan.  He states after he returned from Vietnam he began drinking heavily due to a good friend of his being killed while they were in Vietnam.  He states after his service in Vietnam he married and his wife didn't like military life so she repeatedly returned to her parents in Vermont and he would go AWOL to bring her back to his stateside base.  He further states that he had undiagnosed post-traumatic stress disorder (PTSD) due to serving in Vietnam to include alcohol abuse and was not offered substance abuse treatment while in the military.  He adds that he knows he made some bad choices and has paid for those choices for the rest of his life. 

3.  He provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 1 July 1969 and one for the period ending 19 May 1972.

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 that he enlisted in the Regular Army on 21 September 1966.

3.  His records show:

* he served in Vietnam from August 1967 to August 1968
* he was promoted to pay grade E-5 in May 1969
* he was honorably discharged on 1 July 1969 for the purpose of reenlisting for a period of 6 years on 2 July 1969
* he served in Okinawa from August 1969 to February 1971

4.  His records contain a letter addressed to his spouse in further reply to her letter of 7 December 1971 to the President of the U.S. requesting separation of the applicant.  The letter indicated a checklist was enclosed which may have been helpful in obtaining the documents required to support her husband's application for hardship or dependency separation.  There is no other evidence contained in the applicant's records related to a request for a hardship separation.

5.  On 24 April 1972, he was convicted by a summary court-martial pursuant to his guilty plea of being AWOL during the period of 4 January to 21 March 1972.

6.  On 4 May 1972, court-martial charges were preferred against him for:

* signing an official document with the intent to deceive which indicated his pay grade as E-6
* stealing 70 dollars from the U.S. Government
* stealing 78.57 dollars from the U.S. Government
* filing a claim against the U.S. Government in the amount of 357 dollars which was false and fraudulent in the amount of 70 dollars
* filing a claim against the U.S. Government in the amount of 405 dollars which was false and fraudulent in the amount of 75 dollars
* filing a fraudulent claim against the U.S. Government in the amount of 438.76 dollars which was false and fraudulent in the amount of 78.57 dollars
7.  On 5 May 1972, after having consulted with legal counsel, he voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial for an offense which was punishable by a bad conduct or dishonorable discharge.  He acknowledged he was not subjected to coercion with respect to his request for discharge and he had been advised of the implications attached to his request.

8.  He further acknowledged he understood if his discharge request were accepted, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He waived his rights in conjunction with this consultation.  

9.  He submitted a statement on his own behalf indicating he felt he should be released from active duty because of his problems with drinking and his very sick daughter who was born 2 months premature which was a big problem for him and his wife.  He indicated he was taking classes for drinking and that would solve that part of the problem which would only leave the part with his daughter.  He stated that he felt he would benefit from being released from the military.

10.  On 9 May 1972, in an endorsement to the applicant's request for discharge his intermediate commander stated the applicant had served honorably in Vietnam and Okinawa.  This commander stated the applicant was presently charged with larceny of an amount which would be collected on his voucher for the month of May.  He further stated the applicant:

* surrendered himself on 20 March 1972 after being AWOL for 76 days
* began drinking alcohol excessively due to family problems but claimed that it was no longer a problem
* felt with his current financial and family problems he must get out of the service and obtain a job in order to take care of his family
* stated that if he could not get out of the military he would start drinking heavily again and would probably go AWOL

11.  His complete discharge packet is not contained in his records.  However, on 19 May 1972 he was discharged under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 4 years, 11 months and 8 days of total creditable active service with 154 days time lost during the periods          14 through 29 June 1971, 8 July through 3 September 1971, and 4 January through 20 March 1972.

12.  On 8 December 1973, he enlisted in the Army National Guard (ARNG) for a period of 1 year and was given an undesirable discharge on 1 August 1974, due to fraudulent entry.

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

14.  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(s) charged, the 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 to an individual who was discharged for the good of the service.

15.  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.  He was convicted by a summary court-martial of being AWOL for 76 days, he had court-martial charges preferred against him for signing an official document with the intent to deceive which indicated his pay grade as E-6, and filing three claims against the U.S. Government which were false and fraudulent.

2.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  This serious misconduct warranted a discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Therefore, he was properly and equitably discharged and he is not entitled to a general discharge.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  He reenlisted and honorably served in Okinawa for approximately 18 months after his service in Vietnam and prior to his misconduct.  He enlisted in the ARNG and was discharged due to fraudulent entry.  There is no evidence in his military records he was ever diagnosed with PTSD.

5.  The Army has policies and procedures to deal with hardships.  There is some evidence he may have applied for hardship separation.  Though there is no evidence regarding the outcome of any such request, it must be presumed that his circumstances were determined to be insufficient justification to warrant granting separation on that basis.

6.  In view of the foregoing, there is insufficient basis for granting the 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)                                         AR20110011625



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ABCMR Record of Proceedings (cont)                                         AR20110011625


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