BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110022610 


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 more favorable discharge.

2.  The applicant states that at the time he was suffering from post-traumatic stress disorder (PTSD) after his tour in Vietnam.  He goes on to state that he was a good Soldier in Vietnam and due to family and financial worries, he made some bad decisions.

3.  The applicant provides a letter of support, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a copy of his DA Form 20 (Enlisted Qualification Record), and copies of records of nonjudicial punishment (NJP).

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 inducted in Montgomery, Alabama on 15 December 1964.  He completed his one-station unit training as a light weapons infantryman at Fort Gordon, Georgia and was transferred to Hawaii on 4 May 1965. During the period of 27 December 1965 to 2 October 1966, nonjudicial punishment (NJP) was imposed against him on four occasions for being absent without authority (AWOL) for 4 days, disobeying lawful orders from a superior noncommissioned officer (NCO), failure to go to his place of duty and breaking restriction.  

3.  Meanwhile, on 12 January 1966 he was transferred to Vietnam with his unit and on 17 October 1966 he reenlisted with a waiver in Pleiku, South Vietnam, for a period of 4 years and attendance at a military occupational specialty (MOS) producing school.

4.  On 21 October and 3 November 1966, NJP was imposed against him for failure to go to his place of duty.

5.  He departed Vietnam in January 1967 and was transferred to Fort Gordon, Georgia to attend training in MOS 31J20 (teletype equip repairer).  On 28 March 1967 NJP was imposed against him for failure to go to his place of duty and disobeying a lawful order from a superior NCO.

6.  He was transferred to Fort Hood, Texas on 17 May 1967 and during the period of 15 June 1967 to 4 January 1968, NJP was imposed against him on three occasions for being AWOL for 4 days, failure to go to his place of duty, disobeying lawful orders from NCOs.

7.  On 22 June 1968 he was transferred to Bamberg, Germany and on 25 July 1969 NJP was imposed against him for being AWOL from 17 – 22 July 1969.

8.  On 10 February 1969 he was convicted by a special court-martial of failure to insure and register his privately owned vehicle, failure to have his vehicle inspected, operating an unregistered vehicle and breaking arrest to his quarters. 

9.  On 6 February 1970 he was convicted, pursuant to his plea, by a special court-martial of being AWOL from 28 November 1969 to 3 January 1970.

10.  On 15 May 1970 NJP was imposed against him for being absent from his place of duty.

11.  On 24 May 1970 NJPs imposed against him for being AWOL from 21 – 22 May and 23 – 24 May 1970.

12.  On 17 June 1970 NJP was imposed against him for being AWOL from 7 – 8 June 1970 and for breaking restriction.

13.  On 21 August 1970, charges were preferred against the applicant for being AWOL from 20 July to 21 August 1970.

14.  On 25 August 1970, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also declined to submit a statement in his own behalf.

15.  On 30 October 1970, the appropriate authority (a lieutenant  general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

16.  Accordingly, on 18 November 1970, 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, 5 months and  29 days of total active service and had 155 days of lost time due to AWOL and confinement.

17.  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.

18.  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.

19.  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.

20.  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 have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated nature of his misconduct and the absence of mitigating circumstances.  His service simply did not rise to the level of a general discharge or an honorable discharge.

4.  The applicant’s contention that his misconduct was the result of his PTSD from his service in Vietnam has been noted and appears to lack merit.  The applicant’s misconduct began well before he went to Vietnam and he was given another chance when he was allowed to reenlist with a waiver; however, he did not take advantage of the opportunities provided.

5.  Accordingly, there appears to be no basis to grant his request for an upgrade of 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)                                         AR20110022610





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ABCMR Record of Proceedings (cont)                                         AR20110022610



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