IN THE CASE OF:	  

		BOARD DATE:  12 April 2012

		DOCKET NUMBER:  AR20110019905 


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 for the period ending 4 April 1974.

2.  The applicant states he and his former spouse were having problems and he went absent without leave (AWOL) to try to get things straightened out.  He served two other honorable periods of service and he feels this should be taken into consideration.

3.  The applicant provides:

* two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 July 1969 and 11 September 1970
* DD Form 214 (Report of Separation from Active Duty) for the period ending 4 April 1974
* three statements of support

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 (RA) on 20 May 1968 and he held military occupational specialties 31M (Multichannel Transmission Systems Specialist) and 11B (Light Weapons Infantryman).

3.  He was honorably discharged on 24 July 1969 for the purpose of immediate reenlistment.  He completed 1 year, 2 months, and 5 days of total active service during this period of service.

4.  On 25 July 1969, he reenlisted in the RA and on 11 September 1970 he was honorably discharged for the purpose of immediate reenlistment.  He completed 1 year, 1 month, and 17 days of net active service during this period of service for 2 years, 3 months, and 22 days of total active service.

5.  On 12 September 1970, he reenlisted in the RA.  He served in Vietnam from 16 November 1970 to 7 November 1971.  He departed Vietnam en route to Fort Bliss, TX.

6.  On 27 August 1973, the applicant departed the United States en route to Germany.  On 25 September 1973, he was reported AWOL from his assigned unit and he was subsequently dropped from the rolls (DFR) of the Army.  On 4 January 1974, he was returned to military control.

7.  On 25 January 1974, he was again reported AWOL from his assigned unit.  On 27 January 1974, he was returned to military control.

8.  On 5 February 1974, court-martial charges were preferred against him for two specifications of being AWOL from 12 October 1973 to 4 January 1974 and from 25 January to 27 January 1974.

9.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, the DD Form 214 he was issued for this period of service shows he was discharged on 4 April 1974, 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, in the rank of private with an Undesirable Discharge Certificate.  He completed 3 years, 3 months, and 10 days of net active service during this period of service with 103 days of time lost.
10.  There is no evidence in the available records to indicate he requested leave due to family problems.

11.  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.

12.  The applicant provides three statements of support, dated 23 September and 24 September 2011, written by his father-in-law, a pastor, and an acquaintance, wherein they stated the applicant is a hard worker, an upstanding citizen, and a fine family man.

13.  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 Veterans Administration 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.  

14.  Army Regulation 635-200, 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 of service 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 of service would be clearly inappropriate.

15.  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 record is void of the specific facts and circumstances surrounding his discharge.  However, the available evidence shows he went AWOL on two occasions for a total of 103 days and subsequently was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing 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 reason for separation were appropriate considering all the facts of the case.  

3.  Based on his overall record, his service for this period of service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge for the period of service ending 4 April 1974.

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)                                         AR20110019905



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ABCMR Record of Proceedings (cont)                                         AR20110019905



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