IN THE CASE OF:	  

		BOARD DATE:	  20 December 2011

		DOCKET NUMBER:  AR20110013059 


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 to upgrade his undesirable discharge (UD) to a general discharge (GD), under honorable conditions.

2.  He states upon his return from serving in the Republic of Vietnam (RVN), he went home on 30 days of leave.  He found his wife to be pregnant by another man.  Against his better judgment, he went absent without leave (AWOL) to try to keep his family together.   

3.  He adds he has been diagnosed with Type II Diabetes and is seeking medical relief from the Department of Veterans Affairs (VA).

4.  He provides:

* An enlistment contract
* His DA Form 20 (Enlisted Qualification Record)
* A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Medical documents

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 records show he enlisted in the Regular Army on 8 September 1967 for 
3 years.  After completion of training, he served in military occupational specialty 64C1P (Motor Transport Operator) on Airborne status. 

3.  His DA Form 20 shows the following information:

* Item 31 (Foreign Service) – he served in Vietnam from 28 February 1968 to 6 November 1969
* Item 33 (Appointments and Reductions) – specialist four was the highest grade he attained while serving on active duty
* Item 38 (Record of Assignments) –he received all “excellent” conduct and efficiency ratings up to the period of his AWOL, at which time he received a rating of “unsatisfactory”
* Item 41 (Awards and Decorations) – he was awarded the Army Commendation Medal along with other service awards

4.  A DD Form 458 (Charge Sheet), dated 23 June 1973, shows he was charged with one specification of being AWOL from 7 November 1969 to 14 June 1973.  

5.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel and was fully advised of the nature of his rights under the Uniform Code of Military Justice (UCMJ).  

6.  On 12 July 1973, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service.  He stated he understood he could be discharged under other than honorable conditions and furnished with a UD Certificate.  He added that he understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits that he might be eligible for, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and state law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He provided a statement on his own behalf.
7.  In his request he stated the reason he went AWOL was because upon his return from Vietnam, he discovered his wife was pregnant by another man.  His wife’s parents refused to help her and in fact tried to get her to get an abortion.  He felt obligated to help her, so he agreed to raise the child.  He added that he served in the U.S. Army for 26 months without receiving any type of punishment under the UCMJ, up to the period of his AWOL.  

8.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service and directed a UD Certificate.

9.  On 7 August 1973, the appropriate approval authority approved the applicant's request for discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, and directed he be furnished a UD Certificate and be reduced to the grade of private/E-1.

10.  Accordingly, he was discharged under other than honorable conditions on 
15 August 1973, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service-in lieu of trial by court-martial.  His DD Form 214 shows he had completed 2 years, 4 months, and 1 day of net active service and had a total of 1,315 days of lost time due to AWOL status (305 days prior to his normal expiration term of service and 1,010 days after his normal expiration term or service. 

11.  His record does not show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.  

12.  Army Regulation 635-200, in effect at the time, set forth the sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate, but the separation authority may have directed a GD or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

13.  Paragraph 3-7b of the same regulation, provided that a GD 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 requested that his UD be upgraded to a GD due to the extenuating circumstances surrounding his marriage, and because of his current need for medical treatment from the VA.  His request was carefully considered. 

2.  The evidence of record shows that upon his return from Vietnam he went AWOL for 1,315 days. 

3.  He was charged with a violation of the UCMJ for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face court-martial, he opted to submit a request for discharge in lieu of trial by court-martial, for the good of the service.  His request for discharge was approved.

4.  Accordingly, he was discharged under the provisions of chapter 10 of Army Regulation 635-200.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offenses under the UCMJ.  

5.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  His record does not contain any acts or special recognition which would warrant and upgrade of his discharge.  As such, there is no basis for granting the applicant's request for an upgrade of his discharge.

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)                                         AR20110013059





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ABCMR Record of Proceedings (cont)                                         AR20110013059



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