IN THE CASE OF:	  

		BOARD DATE:  22 May 2012

		DOCKET NUMBER:  AR20110024153 


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 a more favorable discharge.

2.  The applicant states his discharge does not accurately depict the nature of his service and prevents him from improving his current quality of life.

3.  The applicant provides a statement in support of his application, a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a page of his record of assignments from his DA Form 20 (Enlisted Qualification Record), and a copy of his Air Medal Citation.

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 on 31 July 1967 for a period of 3 years and training in the clerical career management field.  He completed basic training at Fort Lewis, Washington, and advanced individual training as a clerk at Fort Ord, California.  Nonjudicial punishment (NJP) was imposed against him on two occasions for being absent from his unit, failing to go to his place of duty, falsifying sick slips, and having alcoholic beverages in the company area.  He remained at Fort Ord until he was transferred to Vietnam on 3 February 1968.

3.  He was initially assigned as a clerk to Headquarters and Headquarters Company, 307th Aviation Battalion, and was attached to the 164th Aviation Group.

4.  On 16 April 1968, he was assigned to the 336th Assault Helicopter Company for duty as a door gunner.  On 25 June 1968, he was transferred to Troop B, 7th Squadron, 1st Air Cavalry Regiment, for duty as a door gunner.  He was advanced to pay grade E-4 on 19 August 1968.

5.  He departed Vietnam on 30 January 1969 for assignment to an artillery battery in San Rafael, California.

6.  On 20 January 1970, NJP was imposed against him for being disrespectful to a major general.

7.  On 10 February 1970, charges were preferred against the applicant for being absent without leave (AWOL) from 19 May to 11 November 1969, from 15 November 1969 to 20 January 1970, and from 30 January to 1 February 1970.

8.  On 6 March 1970 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 – General), chapter 10.  In his request 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 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.

9.  He also elected to submit a statement in his own behalf in which he asserted that he came from a broken home and was forced to join the Army or go to jail.  After returning from Vietnam he was disappointed with the treatment Vietnam veterans received and found himself associating with the wrong people and experimenting with drugs.  He stated he could not adapt to Stateside life and was AWOL.  He also stated that while he believed he gave good service to the Army in Vietnam, he could not return to duty and requested that his discharge be approved.

10.  The appropriate authority (a major general) approved his request for discharge on 16 April 1970 and directed issuance of an Undesirable Discharge Certificate.

11.  Accordingly, he was discharged under other than honorable conditions on 25 April 1970 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 2 years and 20 days of active service and had 245 days of lost time due to AWOL.  His awards include the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal, and Air Medal.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 17 April 1985.  He offered no mitigating circumstances for his actions and the ADRB determined that his discharge was both proper and equitable under the circumstances and denied his request on 14 October 1987.

13.  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.  At the time, an undesirable discharge was usually given.

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 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.

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 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, the length of his absences, and the absence of mitigating circumstances.  His service simply did not rise to the level of an honorable or a general discharge.

4.  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 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)                                         AR20110024153



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ABCMR Record of Proceedings (cont)                                         AR20110024153



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