BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110012862 


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 an honorable discharge.

2.  He states he served the country with honor until his return from Vietnam when he was stationed in Colorado and had a difficult time dealing with the service.

3.  He provides no additional documentary evidence in support of this application.

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.  His military records show he was inducted into the Army on 13 July 1970.  He was awarded the military occupational specialty of light weapons infantryman.
3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 29 December 1970 to 13 December 1971.  

4.  He was honorably discharged on 28 April 1971 for the purpose of immediate reenlistment on 29 April 1971.  The highest rank/grade he held was sergeant/pay grade E-5.

5.  On 25 October 1973, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 20 October 1972 to 10 May 1973 and from on or about 13 June to 4 October 1973.  

6.  On the same date, 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.  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.

7.  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 law.  He also acknowledged he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

8.  He submitted a statement on his own behalf indicating he wanted out of the Army because he had grown tired of the Army.  He stated that since his return from Vietnam everything pertaining to the Army annoyed him.  He stated he would continue to go AWOL because he only wanted to be with his family and work at his civilian job.  He further acknowledged he had been advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and of the effects of this request for discharge and the rights available to him.  He waived his rights in conjunction with this consultation.

9.  On 5 November 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, 
chapter 10.  He directed the applicant be issued an undesirable discharge and reduced to the lowest enlisted rank.

10.  On 13 November 1973, he was discharged accordingly.  The DD Form 214 he received shows he was discharged under the provisions of Army Regulation
635-200, chapter 10, by reason of for the good of the service.  He completed 3 years, 4 months and 23 days of total active service with 343 days of time lost.

11.  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.

12.  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 stated 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.

13.  Army Regulation 635-200, paragraph 3-7a, states 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.

14.  Army Regulation 635-200, paragraph 3-7b, states 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 had court-martial charges preferred against him for being AWOL on two occasions for a total of 343 days.

2.  As a result, 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, for the good of the service.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

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

4.  His service in Vietnam was noteworthy.  However, it was not sufficiently mitigating to overcome his being AWOL for such an extensive amount of time on two occasions and his statement at the time of his discharge processing that he would go AWOL again if he was not discharged. 

5.  In view of the foregoing, there is no 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)                                         AR20110012862



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ABCMR Record of Proceedings (cont)                                         AR20110012862



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