BOARD DATE:	  19 January 2012

		DOCKET NUMBER:  AR20110014541 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he submitted a request for a hardship discharge at the time but it remained on the first sergeant's desk for 3 months.  The personal problems he encountered were of great importance to him but not to the first sergeant who showed a lack of concern or action.  So, he decided to go AWOL (absent without leave) with intent to return.  But his father died while he (the applicant) was in combat and his wife filed for divorce.  His post combat stress and increasing personal problems prevented his return.  He now wants to reconcile with himself and his country.

3.  The applicant did not provide any evidence.

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 records show he was inducted into the Army of the United States on 7 July 1969 and he held military occupational specialty 11C (Infantry Indirect Fire Crewmember).  

3.  He served in Vietnam from 8 December 1969 to 12 November 1970.  While in Vietnam he was honorably discharged on 30 April 1970 for the purpose of immediate enlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded the:

* National Defense Service Medal
* Vietnam Service Medal
* Bronze Star Medal with "V" Device
* Combat Infantryman Badge

4.  He enlisted in the Regular Army on 1 May 1970.  He completed his Vietnam tour and he was reassigned to Fort Hood, TX.

5.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 10 February 1971, for being AWOL from 4 to 8 February 1971
* on 24 March 1971, for being AWOL from 22 to 23 March 1971

6.  On 2 June 1971, he departed his unit in an AWOL status and on 2 July 1971, he was dropped from the rolls of the Army as a deserter.  He was apprehended by civil authorities in Holly Springs, MS, and returned to military control on 11 June 1975.

7.  On 25 June 1975, court-martial charges were preferred against him for three specifications of AWOL from 14 to 17 April 1975, 28 April to 21 May 1975, and 17 June to 21 August 1975.

8.  On 30 June 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by court-martial.
9.  In his request for discharge, he acknowledged he understood by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or a dishonorable discharge.  He acknowledged he was making this request of his own free will and he had not been subjected to any coercion.  He also acknowledged he had been advised of the implications that were attached to his request.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  

10.  On 3 July 1975, his immediate and intermediate commanders recommended approval of the applicant's discharge request with the issuance of an Undesirable Discharge Certificate.  

11.  On 8 July 1975, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 30 July 1975, the applicant was accordingly discharged.

12.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service - in lieu of a court-martial with an under other than honorable conditions character of service and he was issued an Undesirable Discharge Certificate.  This form further confirms he completed a total of 1 year, 1 month, and 14 days of creditable active service during this period and he had 730 days of time lost.

13.  There is no indication he petitioned the Army Discharge Review Board 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 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, the 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.

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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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.

2.  The personal problems he describes are not supported with any evidence.  But even if he encountered any problems, there would have been many other legitimate ways to address these issues had he chosen to use them. 

3.  Based on his record of indiscipline that included two instances of NJP and an extensive history of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20110014541



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ABCMR Record of Proceedings (cont)                                         AR20110014541



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