IN THE CASE OF:	  

		BOARD DATE:	  31 May 2012

		DOCKET NUMBER:  AR20110023462 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD), under honorable conditions.

2.  He states he joined the Army at the age of 17 years and was hurt during his tour of duty in Vietnam.  He contends he went absent without leave (AWOL) because he wanted to see his grandmother before she passed away.  He believes the stress he experienced in Vietnam led him to make poor choices.

3.  He adds that he voluntarily joined the military, unlike many who were drafted.  He feels his service at least warrants an upgrade to a GD.  

4.  The applicant did not provide any additional documentation. 

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.  His military personnel record shows he was born on 7 July 1951.  He enlisted in the Regular Army on 29 October 1969 at the age of 18 years.  After completion of training, he served in military occupational specialty 11E (Armor Crewman).

3.  His DA Form 20 (Enlisted Qualification Record) shows the following:

* Item 31 (Foreign Service) – he served in Germany from 15 June to 
	28 October 1969 and in Vietnam from 29 November 1969 to 28 July 1970
* Item 33 (Appointments and Reductions) – specialist four/E-4 was the highest grade he attained while serving on active duty
* Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) – he had a total of 184 days lost due to AWOL and confinement

4.  A DA Form 20B (Record of Court-Martial Conviction) shows he was convicted by a special court-martial of being AWOL from 16 to 24 March 1971.  He was sentenced to confinement at hard labor and reduced to the grade of private/E-1.

5.  A DD Form 458 (Charge Sheet) dated 22 June 1972 shows he was charged with two specifications of being AWOL from 31 July to 30 September 1971 and from 4 October 1971 to 16 January 1972.

6.  On 17 January 1972, he voluntarily submitted a request for discharge 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.  The applicant stated he:

* was making the request of his own free will and had not been subjected to coercion whatsoever by any person
* understood he could be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate
* understood that as the result of issuance of such a discharge, he could be deprived of many or all Army benefits he might be eligible for, he might be ineligible for many or all benefits administered by the Veterans Administration (VA)
* might be deprived of his rights and benefits as a veteran under both Federal and State laws
* understood he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge
7.  He consulted with counsel and was fully advised of the nature of his rights under the Uniform Code of Military Justice (UCMJ).

8.  The applicant's chain of command unanimously recommended approval of his request for discharge and issuance of an Undesirable Discharge Certificate.

9.  On 25 January 1972, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed issuance of an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 28 January 1972 under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 2 years, 2 months, and 22 days of net active service.

11.  His record does not contain any evidence the applicant performed any acts of valor or was given any special recognition.  It also does not show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  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.  

	b.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service, but the separation authority could have directed a GD or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper.

     c.  A GD was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  
DISCUSSION AND CONCLUSIONS:

1.  He contends he was 17 years old at the time of his enlistment, and the reason he went AWOL was because he desired to see his grandmother before she passed away.  He believes his discharge should be upgraded due to his service in Vietnam. 

2.  His contentions are noted.  His entire record of service was reviewed and his post-service achievements and conduct were also taken into consideration.  His record contains no documentary evidence of acts of valor or special; however, it does show he went AWOL on numerous occasions and was tried by special court-martial for at least one of his AWOL offenses.  

3.  Notwithstanding the above, the evidence further shows the applicant was charged with an offense for which a bad conduct or dishonorable discharge could have been imposed.  Rather than face trial by court-martial, he opted to submit a request for discharge for the good of the service.  His request was approved and he was discharged accordingly.

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that at the time he requested discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110023462





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ABCMR Record of Proceedings (cont)                                         AR20110023462



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