IN THE CASE OF:	  

		BOARD DATE:	    5 January 2012

		DOCKET NUMBER:  AR20110012347 


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 under other than honorable conditions discharge be upgraded to honorable.

2.  He states his discharge should be upgraded because of the time he spent overseas.  He argues he did his required time overseas and more. 

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 enlisted in the Regular Army on 18 January 1968.  He served in the Republic of Vietnam from 8 June 1968 to 7 December 1969.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report to his appointed place of duty on 12 February 1968.

4.  Headquarters, Special Troops, Fort Dix, NJ, Special Court-Martial Order Number 1514, dated 20 October 1970, shows he was found guilty of being absent without leave (AWOL) from 28 March 1970 to 8 July 1970.

5.  The charge sheet or all the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are not contained in his available military records.

6.  However, his records contain a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence).  This form shows he was reported absent on 12 May 1972 and returned to military control on 25 August 1972.  

7.  On 2 September 1972, he consulted with counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.

8.  In requesting a chapter 10 discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit a statement on his behalf.

9.  His DD Form 214 shows he was discharged for the good of the service in lieu of a trial by court-martial on 5 October 1972, under the provisions of Army Regulation 635-200, chapter 10.  It shows his service was characterized as under other than honorable conditions.  It further shows he completed 2 years, 
1 month, and 21 days of total active service of which 1 year, 5 months, and 17 days was listed as foreign service.  His DD Form 214 also lists 461 days as lost time under Title 10 U.S. Code 972 and another 476 days of lost time subsequent to his expiration term of service.
10.  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.

11.  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 or offenses charged, 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 an individual who was discharged for the good of the Service.

12.  Army Regulation 635-200, paragraph 3-7a, 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.

13.  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.  The applicant's argument, in effect, that the time he spent overseas led to his indiscipline was considered.  However, there is no evidence and he has not provided any to show that his service in Vietnam was more stressful than for other Soldiers who successfully completed their foreign service obligations.  Therefore, his argument is not sufficient as a basis for upgrading his discharge. 

2.  His record is void of the specific facts and circumstances surrounding his discharge.  However, it appears he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of 

trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is presumed that all requirements of law and regulation were met, and his rights were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service.

3.  In view of the foregoing, there is no basis for granting his 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)                                         AR20110012347





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ABCMR Record of Proceedings (cont)                                         AR20110012347



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