IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011834 


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 undesirable discharge (UD) to an honorable discharge (HD).

2.  The applicant states:

	a.  he was told his UD would be changed to an HD;

   b.  he signed out of the service because he was scared to death of dying in the Vietnam war; and
   
   c.  it was his understanding he would still be entitled to Army benefits.

3.  The applicant provides a:

* Standard Form 180 (Request Pertaining to Military Records)
* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) page 2 only
* Standard Form 88 (Report of Medical Examination), dated 5 March 1968 and 30 April 1970
* Standard Form 601 (Health Record/Immunization Record)


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.  On 2 February 1969, the applicant was inducted into the Army of the United States.  He completed basic combat training at Fort Bragg, North Carolina.

3.  His DA Form 20 (Enlisted Personnel Record) shows he departed absent without leave while attending advanced individual training at Fort Jackson, South Carolina.  Item 44 (Time Lost) shows he accrued 324 days of lost time during:

* 2 June - 15 April 1970 (318 days)
* 16 - 21 April 1970 (6 days)

4.  On 27 April 1970, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 2 June 1969 to 16 April 1970.

5.  On 28 April 1970, the applicant consulted with legal counsel and 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 UD, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

6.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UD.
7.  The separation authority approved the applicant's request for discharge and directed that he be discharged under the provisions of chapter 10, Army Regulation 635-200 with a UD.

8.  On 15 May 1970, the applicant was discharged accordingly in the lowest enlisted rank of PVT/E-1.  His DD Form 214 shows he completed 4 months and 20 days of active military service.

9.  On 4 June 1981, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

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

	a.  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 HD or GD is authorized, an under other than honorable conditions discharge is normally considered appropriate.  However, a UD was considered appropriate at the time the applicant was discharged.

	b.  Paragraph 3-7a provides that a HD 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 of provides that a GD 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 a HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded because he was told it would be changed to an HD.  The U. S. Army does not have, nor has it ever had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if it is determined the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL 324 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  Considering the length of his AWOL, his service clearly did not support a GD or HD at the time of discharge and it does not support an upgrade now.

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)                                         AR20110011834



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ABCMR Record of Proceedings (cont)                                         AR20110011834



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