IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110022322 


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 undesirable discharge to an honorable discharge.

2.  He states he signed papers for an honorable discharge upon getting out of the service.  A mistake must have been made in his paperwork as it states he was unavailable for signature.  Upon going to a Department of Veterans Affairs (VA) Medical Center for assistance it was brought to his attention that he did not have an honorable discharge.

3.  He provides two DD Forms 214 (Report of Separation from Active Duty).

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.  On 26 June 1962, the applicant enlisted in the Regular Army (RA) and served until he was honorably released from active duty on 25 June 1965 and transferred to the U.S. Army Reserve.  

3.  On 2 September 1965, he enlisted in the RA and he held military occupational specialty (MOS) 63C (Tracked Vehicle Mechanic) and related MOSs.  His record shows he served in Vietnam from 25 October 1966 through 24 October 1967.  

4.  On 25 March 1969, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 21 to 23 March 1969.  

5.  On 3 September 1969, Headquarters, Special Troops, Fort Dix, NJ, issued Summary Court-Martial Order Number 831 showing he was found guilty of being AWOL from the U.S. Army Overseas Replacement Station, Fort Dix, NJ, from 
27 June to 1 August 1969.

6.  On 23 December 1970, Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, issued Special Court-Martial Order Number 376, which shows he was found guilty of being AWOL from the U.S. Army Oversea Replacement Station, U.S. Army Personnel Center, Fort Lewis, WA, from 18 September to 18 November 1970.  

7.  A DD Form 458 (Charge Sheet) shows he was charged with being AWOL from the U.S. Army Overseas Replacement Station, Fort Lewis, WA, from 1 January 1971 to 24 November 1975.  

8.  On 4 December 1975, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of his rights.  

9.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  In his voluntary request for discharge, he acknowledged he was guilty of the charge against him or a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  He indicated he understood if his request was accepted he could be discharged under other than honorable conditions.  He further acknowledged he understood that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, be ineligible for many or all benefits administered by the VA, be deprived of his rights and benefits as a veteran under both Federal and State laws, and encounter substantial prejudice in civilian life.  He elected to submit a statement in his own behalf.

10.  The statement he submitted with his request for discharge is as follows:

"At the time that I went AWOL I was in transit back to Vietnam and me and my wife was [sic] having family problems.  Before I left she took my son and left Phoenix where I left her.  My mother called me at Fort Lewis and told me she had left and I knew she had no money.  After I did find her I took the boy back to Arizona with me.  We have been back together for about two and a half years, about 9 [months] of which she spent in and out of hospitals in [Oklahoma and Texas].  I know I have been gone a long time but I would like to have a General Discharge.  I have almost 8 years [of] good time and I have a good record up until the time I went AWOL and I only had a year to go on my enlistment.  Only 8 months.  I had a good record for 8 years.  I just hope that I can receive my benefits.  My enlistment was to be [through] 1 September 1971.  I went AWOL about 1 January 1971."

11.  On 22 December 1975, the separation authority approved his request and directed that he be issued an Undesirable Discharge Certificate.  On 13 January 1976, he was discharged accordingly.  

12.  The DD Form 214 issued at that time shows he completed 8 years, 3 months, and 18 days of total active service with 1,851 days of time lost, which included 40 days of excess leave from 5 December 1975 through 13 January 1976.  The DD Form 214 also shows he was awarded the Army Good Conduct Medal.  Copy 2 of this DD Form 214 bears the stamped entry "Separatee unavailable for signature" in item 29 (Signature of Person Being Separated).

13.  His record shows no acts of valor, significant achievement or service warranting special recognition.  

14.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  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, the 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.  

16.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  The version in effect at the time stated, when the separatee could not or would not sign, to leave item 29 blank on copies delivered to the separatee and enter on all other copies "Separatee unavailable for signature" or "Separatee declined to sign," as appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The absence of the applicant's signature on his final DD Form 214 is not evidence of a mistake in his discharge processing.  The regulation governing the preparation of the DD Form 214 provided that the form could be issued without the separatee's signature if he could not sign.  The applicant was on excess leave when he was discharged.  Because he was not present, he could not sign the form, and it was properly issued without his signature.  

2.  He served honorably during his first term of RA service, and it appears his service was satisfactory during his second term of RA service until he went AWOL from 21 to 23 March 1969, which was the first of four periods of AWOL.  

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The available evidence shows he was charged with and admitted he was guilty of being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  

4.  He accepted NJP for being AWOL and was convicted twice by courts-martial for being AWOL.  Further, in his voluntary request for discharge in lieu of trial by court-martial he admitted being AWOL over 4 years, which was an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general or an honorable discharge.

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)                                         AR20110022322



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ABCMR Record of Proceedings (cont)                                         AR20110022322



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