IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110014279 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he served 18 months in Vietnam and after he returned home he was going through a divorce.  He states he returned on his own.  He was young and made a mistake.

3.  The applicant provides a copy of 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 was born on 18 March 1949.  He enlisted in the Regular Army on 11 June 1968 for a period of 3 years and training in the motor maintenance career management field.  He was married at the time of his enlistment.

3.  He was transferred to Fort Jackson, South Carolina, to undergo basic training and advanced individual training (AIT) as a wheel vehicle mechanic.

4.  On 6 September 1968 while in AIT, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 2 September to 3 September 1968.

5.  He completed his training and was transferred to Vietnam on 13 November 1968 for assignment as an automotive repairman.

6.  On 20 July 1969, he submitted a request for assignment to another unit, an extension of his tour in Vietnam for 6 months, and 30 days of special leave to go home.  He also indicated his marital status as "single" at that time.  His request was approved on 19 August 1969.

7.  He was advanced to pay grade E-4 on 22 November 1969.  On 23 July 1970, he departed Vietnam for assignment to Fort Devens, Massachusetts.

8.  On 21 September 1970, NJP was imposed against him for being AWOL from 7 September to 11 September 1970.

9.  On 14 October 1970, he again was AWOL and remained absent in desertion until he was returned to military control at Fort Devens on 4 October 1971.  Charges were preferred against him on 8 October 1971.

10.  On 14 October 1971 after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In his request he indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He acknowledged he understood he could receive an undesirable discharge and he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to an honorable or a general discharge because the likelihood of that ever occurring was extremely remote.  Additionally, he was advised extensively of the procedures for applying to the Army Discharge Review Board (ADRB) and the ABCMR for an upgrade of his discharge.  He elected to submit a statement in his own behalf wherein he stated he could no longer take the Army after returning to stateside duty and wanted to get out any way he could.

11.  The appropriate authority approved his request for discharge and directed issuance of an Undesirable Discharge Certificate.

12.  Accordingly, he was discharged in lieu of trial by court-martial under other than honorable conditions on 5 November 1971 under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 4 months, and 26 days of total active service and had 359 days of lost time due to AWOL.

13.  There is no evidence in the available records to show he ever applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

15.  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.

16.  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 voluntary request for discharge for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct, his overall record of service, and the absence of mitigating circumstances.  Accordingly, his service simply did not rise to the level of a fully honorable or under honorable conditions 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 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)                                         AR20110014279



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ABCMR Record of Proceedings (cont)                                         AR20110014279



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