BOARD DATE:	5 April 2012  

		DOCKET NUMBER:  AR20110018716 


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 under honorable conditions.

2.  The applicant states the treatment he received in basic training was not what he was expecting.  There were many fights and a specialist five was selling their food.  He requested and received orders for airborne training where he found the treatment to be much better and he felt good about the training.  Upon completion of jump training he received orders for Vietnam.  While home on leave everyone keep looking at him as if it would be the last time he would be alive.  The day before his departure his family sat him down to discuss his orders.  His family was in tears, begging him to stay in America and telling him he could stay with his brother in Connecticut.  Up to this point he didn’t know how upsetting his decision to go to Vietnam had affected them.  Even though he served a short time, he believes he shouldn't be given a stigma as being undesirable.

3.  The applicant provides:

* his DD Form 214 (Report of Separation from Active Duty) with an effective date of 28 February 1975
* his Connecticut driver license
* Connecticut State Permit to carry pistols and revolvers
* a letter, dated 25 August 2011, from the National Personnel Records Center, St. Louis, MO
 
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.  He was inducted into the Army of the United States on 2 August 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 29 January 1975, court-martial charges were preferred against him for being absent without leave (AWOL) from on or about 6 January 1970 to on or about 22 January 1975 from the Overseas Replacement Station at Oakland, CA.

4.  On 29 January 1975, he signed a statement indicating he had been afforded the opportunity to participate in the Presidential Program for Return of Military Deserters.  He did not desire to participate in the program and stated he had submitted a request for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

5.  On 30 January 1975, he consulted with counsel and voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making this request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* guilty of the offense with which he was charged
* making the request of his own free will
* advised he may be furnished an Undesirable Discharge Certificate
* advised he could submit statements in his own behalf

6.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

7.  He did not submit statements in his own behalf with his request for discharge.

8.  His commander recommended approval of his request and his intermediate commander recommended he receive an Undesirable Discharge Certificate.

9.  On 28 February 1975, he was discharged for the good of the service and issued an Undesirable Discharge Certificate.  He completed 1 year, 6 months, and 11 days of net active service that was characterized as under other than honorable conditions.  

10.  The Army Discharge Review Board (ADRB) reviewed his discharge on 
28 July 1978 and denied his request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated a member who was charged with 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, an Undesirable Discharge Certificate was normally furnished an individual who was discharged for the good of the service.

	b.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  His voluntary request for discharge under the provisions chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  He acknowledged he could receive an undesirable discharge and that he could expect to encounter substantial prejudice in civilian life if issued such a discharge.

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  An undesirable discharge was normally considered appropriate when a member was separated under the provisions of chapter 10.  There is no evidence of procedural or other errors that would have jeopardized his rights.  

3.  Due his failure to report for duty and the length of his period of AWOL, his service was unsatisfactory.

4.  In view of the above, there is an insufficient basis to upgrade his discharge 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 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)                                         AR20110018716



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ABCMR Record of Proceedings (cont)                                         AR20110018716



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