IN THE CASE OF:	  

		BOARD DATE:  8 March 2012

		DOCKET NUMBER:  AR20110018017 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states:

	a.  he foolishly made the decision to leave the military after being absent without leave (AWOL), and

	b.  he served honorably through combat in Vietnam, received the Army Commendation Medal, and acted responsibly.

3.  The applicant indicates he provided copies of the following documents; however, they were not included with his application when it was received by Army Board for Correction of Military Records (ABCMR):

* DD Form 4 (Enlistment Record), dated 28 April 1969
* DD Form 47 (Record of Induction), dated 4 May 1968
* DA Form 20 (Enlisted Qualification Record), dated 28 April 1969
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 27 April 1969 and 25 September 1972

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 initially inducted into the Army of the United States and entered active duty on 28 August 1968.  He was trained in and awarded military occupational specialty 17B (Field Artillery Radio Operator).

3.  On 27 April 1969, he was honorably discharged for the purpose of immediate enlistment.  The DD Form 214 he was issued at that time shows he completed
8 months of total active service.

4.  On 28 August 1969, the applicant enlisted in the Regular Army.  His DA Form 20 shows he served in the Republic of Vietnam from 1 December 1969 to 
4 November 1970.  It also shows he was promoted to specialist five (SP5)/E-5 on
3 May 1970.

5.  On 7 September 1972, a DA Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL from on or about 
1 May until on or about 15 August 1972.

6.  On 29 August 1972, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

7.  In his request for discharge the applicant acknowledged he understood 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.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge.  He elected to submit a statement in his own behalf.  In his statement he stated the reason he wanted out of the Army was because the Army was interfering with his marriage and he had a lot of family problems at home.  He could not make his debts on what he would be drawing from the Army.  The Army was also not meeting his (re)enlistment contract.  He wished to be released from the service.

8.  On 11 September 1972, the applicant's unit commander recommended approval of his request for discharge with issuance of an Undesirable Discharge Certificate.

9.  On 12 September 1972, the applicant's intermediate commander recommended disapproval of his request for discharge and recommended trial by special court-martial.

10.  On 15 September 1972, the separation authority, a major general, approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

11.  On 25 September 1972, the applicant was discharged accordingly.  He completed 3 years, 9 months, and 14 days of total active service with 106 days of time lost.

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

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

	a.  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, 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.

	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 contends his undesirable discharge should be upgraded because he foolishly left the Army after a period of AWOL.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for 106 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support an honorable or a general discharge at the time, nor would it be appropriate to upgrade his discharge now.

4.  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)                                         AR20110018017



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ABCMR Record of Proceedings (cont)                                         AR20110018017



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