IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110016659 


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 his undesirable discharge be upgraded to a general discharge.

2.  The applicant states:

* He did his job in Vietnam and did not run from it like others did
* He went absent without leave (AWOL) for his family (wife and sons), not to leave the Army
* He has not been in trouble with the law
* He has helped other veterans
* He knows what he did was wrong
* He did love his job in the Army
* He went to Vietnam two times
* He had a good record 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 14 June 1968 for a period of 
3 years.  On 13 February 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 14 February 1969 for a period of 4 years.  On 
23 July 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 24 July 1970 for a period of 6 years.  

3.  His inclusive dates of service in Vietnam are not available.  However, his Army Commendation Medal orders show he was in Vietnam from April 1969 to March 1970.  

4.  He went AWOL on 16 January 1973 and returned to military control on 
31 August 1973.  On 17 January 1974, charges were preferred against the applicant for the AWOL period. 

5.  On 17 January 1974, after consulting with 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 – Enlisted Personnel), chapter 10.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might 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 laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated he wanted to get out of the Army because he didn't like it, he couldn't take the Army way of life anymore, and he stayed in the Army 6 years because of his family. 

6.  On 22 January 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.


7.  He was discharged on 30 January 1974 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  He completed a total of 5 years and
4 days of total active service with 196 days of lost time.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 to an individual who was discharged for the good of the service at the time the applicant was discharged.

10.  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 now contends he went AWOL for his family.  To the contrary, in his request for discharge in 1974 he stated he stayed in the Army because of his family.  However, family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show he sought assistance from his chain of command, chaplain, or any other available resources to resolve his problems within established Army procedures prior to going AWOL.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

4.  His service in Vietnam and his prior honorable discharges were noted.  However, since his record of service during his last enlistment included 196 days of lost time, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110016659



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ABCMR Record of Proceedings (cont)                                         AR20110016659



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