IN THE CASE OF:	  

		BOARD DATE:  19 June 2012

		DOCKET NUMBER:  AR20110019707 


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 a general discharge.

2.  The applicant states: 

* he became discouraged and went absent without leave (AWOL) after being denied assignment to the Republic of Vietnam (RVN)
* he was pushed aside because of his age and inexperience; he was not offered counseling or alternatives to change his situation
* after returning from AWOL he received a court-martial and he was placed in a Special Processing Detachment which was the worst assignment possible
* he continued to go AWOL because no one seemed to care

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a letter of support from his wife.

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 born 6 December 1952.  He enlisted in the Regular Army on 9 January 1970 (with parental consent).  The applicant successfully completed training and he was awarded military occupational specialty 76Y (Supply Specialist).  

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 13 May 1970, for not being at his appointed place of duty, for being disrespectful towards a superior officer, and disobeying a lawful order
* 16 May 1970, for disobeying a lawful order and breaking restriction
* 22 June 1970, for disobeying a lawful order and misappropriation of government property

4.  On 21 September 1970, pursuant to his pleas, the applicant was convicted by a summary court-martial of AWOL for the period 1 September 1970 through 
8 September 1970.  His sentence consisted of reduction to the lowest enlisted grade of private and a forfeiture of $70.00 pay per month for 1 month.

5.  Evidence of record shows the applicant was AWOL for the following periods:

* 1 September 1970 through 8 September 1970
* 1 October 1970 through 13 October 1970
* 15 October 1970 through 28 October 1970
* 29 October 1970 through 5 January 1971
* 3 February 1971 through 16 February 1971
* 1 March 1971 through 2 March 1971
* 28 March 1971 through 28 March 1971

6.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his record contains a DD Form 214 that shows he was discharged on 30 March 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted 


Personnel), chapter 10, by reason of for the good of the service - in lieu of trial by court-martial, with an undesirable discharge.  The applicant completed
10 months and 25 days of total active service with 117 days of time lost.

7.  There is no evidence in the available record that shows he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with his issues prior to going AWOL or after his return.

8.  The applicant provides a letter of support from his wife.  She states the applicant is a caring and giving person towards his family and friends without asking anything in return.  She further states since their marriage she has never seen the applicant harm another person or animal.  She states she is blessed to be his wife.

9.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 4 January 1974, the ADRB reviewed and denied his appeal.  The ADRB determined his discharge was proper and equitable and that the discharge was properly characterized as under conditions other than honorable.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, 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. At the time, an undesirable discharge was normally considered appropriate.

11.  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 upgrade of his discharge was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant contends he was inexperienced at the time.  Records show he was 17 years, 1 month, and 4 days of age at the time his active service began.  Many Soldiers enlist in the Army at age 17 and demonstrate the maturity to successfully complete their terms of enlistment.
3.  The applicant completed his initial entry training without any problems, demonstrating his ability to successfully perform as a Soldier.  These factors refute his contention that he was inexperienced.

4.  The applicant contends he was discouraged because he was denied a tour of duty in the RVN and that he was frowned upon.  There is no evidence of record that shows he requested assignment to the RVN or that he sought assistance from his chain of command, a chaplain, or other community support services personnel for help with his issues before going AWOL.  There is also no evidence to show he actually went AWOL because nobody seemed to care what he did.

5.  The applicant's record shows he received three Article 15s and he had six offenses of AWOL.  He had completed a total of 10 months and 25 days of creditable active service with 117 days of time lost.  Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

6.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

7.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

8.  The support letter submitted by the applicant's wife is noted; however, the letter in itself is insufficient to mitigate the applicant's misconduct that ultimately led to his request for voluntary separation.

9.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110019707



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ABCMR Record of Proceedings (cont)                                         AR20110019707



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