IN THE CASE OF:	  

		BOARD DATE:	  24 January 2012

		DOCKET NUMBER:  AR20110014762 


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.

2.  The applicant states he had a perfect record until he was listed absent without leave (AWOL) while he was in Vietnam.

3.  The applicant provides no documentary evidence in support of his 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.  The applicant enlisted in the Regular Army on 19 June 1969.  He was trained in and awarded military occupational specialty (MOS) 63B (Wheel Vehicle 


Mechanic).  On 24 February 1970, he was honorably discharged for the purpose of immediate reenlistment and on 25 February 1970, he reenlisted for 3 years.  On 11 November 1971, he was again honorably discharged for the purpose of immediate reenlistment and on 12 November 1971, he reenlisted for 5 years.  

3.  The applicant's record shows he served in the Republic of Vietnam (RVN) from 4 May 1970 through 8 April 1971 and from 29 February through 12 June 1972.

4.  On 12 June 1972, the applicant departed AWOL from his unit in the RVN.  He was dropped from the rolls (DFR) of his organization on 21 June 1972, and he remained in this status for 498 days until returning to military control at Fort Knox, Kentucky on 23 October 1973.

5.  On 2 November 1973, a DD Form 458 (Charge Sheet) was prepared against the applicant preferring a court-martial charge for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from 12 June 1972 to 23 October 1973.

6.  On 14 November 1973, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel),
chapter 10, for the good of the service - in lieu of trial by court-marital.

7.  In his request for discharge, the applicant acknowledged he understood if his request for discharge were accepted he could receive an undesirable discharge.  As a result, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 5 December 1973, the separation authority approved the applicant’s voluntary request and directed he receive an Undesirable Discharge Certificate.  On 14 December 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 8 months and 22 days of net active service during this period of service for 3 years, 1 month, and 15 days of total active service.  He accrued 498 days of time lost due to AWOL.


9.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable discharge or GD is authorized, a discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  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.

	c.  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 request for upgrade of his undesirable discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  


3.  The applicant’s honorable service during prior enlistments is properly documented in the DD Forms 214 he was issued for those periods.  His record during the period of enlistment under review is not sufficiently meritorious to support the issuance of an honorable or a general discharge by the separation authority at the time of his final discharge and it does not support an upgrade to an honorable or a general discharge at this late date.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20110014762



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ABCMR Record of Proceedings (cont)                                         AR20110014762



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