IN THE CASE OF:	  

		BOARD DATE:	  13 March 2012

		DOCKET NUMBER:  AR20110018709


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 discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

* his conduct, efficiency ratings/behavior, and proficiency marks were mostly pretty good
* he received awards and decorations as well as letters of commendation
* he had combat service
* his record of promotions shows he was a pretty good Soldier
* he had a prior honorable discharge
* he has been a good citizen since his discharge

3.  The applicant provides no additional 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 enlisted in the Regular Army on 3 September 1969.  He completed training and was awarded military occupational specialty 67U (CH-47 Helicopter Repairman).

3.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 3 May 1970 to on or about 26 November 1970.

4.  Special Orders Number 286, Headquarters, 101st Airborne Division (Airmobile), dated 13 October 1970, honorably discharged him from the Army effective 11 October 1970 for the purpose of immediate reenlistment.

5.  On 12 October 1970, he reenlisted in the Regular Army for a 3-year term.

6.  On 27 November 1970, he was reported by his unit as absent without leave (AWOL).  He remained AWOL until he returned to military control on 6 May 1971.

7.  On 11 May 1972, he was again reported as AWOL.  He remained AWOL until he returned to military control on 6 April 1973.

8.  On 12 April 1973 prior to court-martial charges being preferred against him, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and the procedures and rights available to him.

9.  On 25 April 1973, court-martial charges were preferred against him for two specifications of being AWOL from on or about 27 November 1970 to on or about 6 May 1971 and from on or about 11 May 1972 to on or about 6 April 1973.

10.  On 26 April 1973 subsequent to receiving legal counsel and after being charged, he voluntarily requested 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 for discharge, he indicated he understood if his request for discharge were accepted he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 15 May 1973, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 18 May 1973, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was credited with the completion of 2 years, 4 months, and 5 days of total active service with 489 days of lost time.  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

12.  On 13 March 1974, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, stated that a member who had 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

14.  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 request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It appears he departed AWOL from a combat zone.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

3.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, including multiple periods of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general discharge under honorable conditions.

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)                                         AR20110017238



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ABCMR Record of Proceedings (cont)                                         AR20110018709



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