IN THE CASE OF:	  

		BOARD DATE:	  5 June 2012

		DOCKET NUMBER:  AR20120000157 


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.  The applicant states:

* The punishment did not fit the crime
* The military court did not take into account his combat service or his post-traumatic stress disorder
* He was in combat for 10 1/2 months, in three divisions; he was a good Soldier
* He does not feel he should carry this discharge for the rest of his life
* Many other Soldiers who did more than what he did received a general discharge

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 215 (Correction to DD Form 214 - Certificate of Release or Discharge 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.  The applicant's records show he enlisted in the Regular Army on 3 November 1969 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  He served in Germany from 1 April 1970 to 7 January 1971 and in Vietnam from 13 March 1971 to on or about 9 November 1971.

4.  On 4 March 1971, at Fort Lewis, WA, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 14 February to 4 March 1971. 

5.  On 22 October 1971, in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation. 

6.  On 17 November 1971, he departed his Vietnam unit in an AWOL status and on 17 December 1971, he was dropped from the Army rolls as a deserter.  His date of return to military control cannot be determined. 

7.  While AWOL, his chain of command preferred court-martial charges against him for one specification of AWOL.

8.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214, as amended by his DD Form 215, that shows he was discharged on 29 May 1972 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions.  This form also shows he completed a total of 2 years, 5 months, and 14 days of creditable active service and he accrued 151 days of lost time. 

9.  On 5 November 1976, the Army Discharge Review Board determined his discharge was proper and equitable.  Accordingly, it denied his petition for an upgrade of his discharge.


10.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

11.  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.

12.  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 contends his undesirable discharge should be upgraded.

2.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 29 May 1972 under the provisions of Army Regulation 635-200, chapter 10.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service.

4.  With respect to his arguments:

	a.  The Army has never had a policy whereby a discharge is upgraded due to the passage of time.  There is no evidence in the available records and the applicant did not provide documentation to warrant an upgrade of his discharge.

	b.  His contention that other Soldiers received a general discharge lacks merit.  The Board cannot compare his case to others because the facts and circumstances surrounding those other Soldiers' cases are not available for review.  In any case, each case stands on its own merits. 

	c.  The applicant's combat service would have been presumably considered in the processing of his discharge.  In those case when a member elects a discharge in lieu of trial by a court-martial, although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate. 

	d.  There is no evidence in his records and he provides none to show he was diagnosed with PTSD or any other mental condition or that this alleged condition led him to go AWOL.  In any case, the evidence of record clearly shows he departed AWOL prior to arriving in and after his departure from Vietnam.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an honorable or a general 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)                                         AR20120000157





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ABCMR Record of Proceedings (cont)                                         AR20120000157



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