IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110022521 


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 that his undesirable discharge be upgraded to a discharge under honorable conditions.

2.  The applicant states that he served honorably from 1966 through 1972 and he was proud to serve his country.  He goes on to state that he received numerous combat awards while serving in Vietnam and other awards from the Army to show that he was proud to serve.  He further states that he reenlisted to remain in Vietnam and he could not handle how he was treated when he returned to the United States.  He continues by stating that he made choices at the age of 20 that he now regrets and believes that had it not been for the one incident he would have made a career out of the military.

3.  The applicant provides a one-page statement explaining his application, a statement from his mother, copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and copies of his award certificates.

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 25 January 1966 for a period of 3 years.  He underwent one-station unit training as a field wireman at Fort Hood, Texas and he was transferred to Berlin, Germany on 18 January 1967.  He was advanced to the pay grade of E-4 on 17 August 1967.  He was honorably discharged on 22 March 1968.

3.  On 23 March 1968, he reenlisted in the RA for a period of 4 years, assignment to Vincenza, Italy and a Variable Reenlistment Bonus.  He was transferred to Italy on 27 March 1968 and promoted to the rank of sergeant on 
29 October 1968.  He remained in Italy until 9 December 1968 when he departed for assignment to Vietnam.

4.  On 27 January 1969, he arrived in Vietnam and was assigned to an artillery battery.  He extended his tour and served in Vietnam until 31 August 1970 and he was transferred to Fort Sill, Oklahoma on 7 October 1970.

5.  The applicant went absent without leave (AWOL) on 2 January 1971 and remained absent in a desertion status until he was apprehended by civil authorities in Painsville, Ohio on 4 April 1971 and returned to military control at Fort Knox, Kentucky on 7 April 1971.

6.  On 22 April 1971, he again went AWOL and remained absent in a desertion status until he was returned to military control at Fort Knox on 19 May 1975.  Charges were preferred against him for the two offenses on 27 May 1975.

7.  On 28 May 1975, after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf whereas he stated, in effect, that he did not like how he was treated after returning from Vietnam, that he had no love for the Army and did not want to be in the Army.  He also stated that he would continue to go AWOL until he was discharged.

8.  On 30 May 1975, the appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

9.  Accordingly, on 16 June 1975, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 5 years and 20 days of total active service and had 1,152 days of lost time due to being AWOL.  His awards included the National Defense Service Medal, Army of Occupation Medal (Berlin), Vietnam Service Medal, Republic of Vietnam Campaign Medal, Republic of Vietnam Gallantry Cross with Palm Unit Citation, Bronze Star Medal, and Army Commendation Medal.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.

12.  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 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.

13.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence or mitigating circumstances before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absence, rank at the time, and the nature of his circumstances.  His service simply did not rise to the level of a general discharge or an honorable discharge.  

4.  While it is unfortunate that the attitude towards returning Vietnam veterans was not as favorable as it should have been actions such as the applicant’s did nothing to resolve such attitudes and served only to further denigrate military service to one’s nation.  The applicant was a noncommissioned officer who knew better and he was expected to set an example; however, he betrayed the trust placed in him by going on an extended absence instead of seeking assistance from his chain of command.  Accordingly, there appears to be no basis to upgrade his 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)                                         AR20110022521



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ABCMR Record of Proceedings (cont)                                         AR20110022521



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