IN THE CASE OF:	

		BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120000982 


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, in effect, upgrade of his undesirable discharge.

2.  The applicant states:

	a.  He honorably served in the Army from 13 August 1969 to March 1971.  He served in Vietnam, had no problems, and his military record was clean until he went home [from Vietnam] on emergency leave in February 1971 due to his father's death.  Due to his family's hardship and the extreme difficulty of serving in Vietnam, he could not make himself go back.  He turned himself in on 12 August 1971, dealt with his mistake, and he was discharged with an undesirable discharge on 17 December 1971.

	b.  If he had to do it over again he would never have come home from Vietnam.  Had he completed his tour in Vietnam, he would not have the undesirable discharge he has today.  Since his discharge, he has been a good citizen, raised a family, worked regularly, been active in his church, and has never asked for anything.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 into the Army of the United States on 13 August 1969.  He held military occupational specialty 57A (Duty Soldier).  He was assigned to Headquarters Detachment, U.S. Army Signal Support Agency, Vietnam, on an unknown date.

3.  On 27 April 1970, he was granted 45 days of emergency leave to return home due to a family emergency.  He failed to report back to his unit in Vietnam and on 9 June 1970, he was reported absent without leave (AWOL).  On 8 July 1970, he was dropped from the rolls (DFR) of the Army.

4.  The complete facts and dates of the applicant's AWOL and DFR periods are not available for review.  However, his record contains a Memorandum for Record that shows on 18 August 1970, he was returned to military control at Fort McPherson, GA.  He was attached to Fort McPherson until 16 October 1970, when he was issued orders to report to Oakland, CA, on 29 October 1970 for return to his unit in Vietnam.  He failed to report to Oakland and on an unknown date he was subsequently returned to military control at Fort McPherson.  On 6 March 1971, he was issued orders to report to Fort Stewart, GA.

5.  He failed to report to Fort Stewart.  On 29 September 1971, he was returned to military control at Fort Campbell, KY.

6.  On 29 September 1971, court-martial charges were preferred against the applicant for one specification of being AWOL from on or about 6 March to on or about 29 September 1971.

7.  On 30 September 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.
8.  Following consult with legal counsel, he requested 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.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA) and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.  He elected to submit a statement in his own behalf.

9.  In his statement, he stated he was requesting a discharge for the good of the service because he had nothing but trouble while he was in Vietnam.  He went home from Vietnam after 4 months to try and save his marriage but ended up getting a divorce.  He was taking care of an invalid uncle who would not stay with anybody else.  He further stated each time he left home his father and step-mother would have to move out of their home and move into his.

10.  On 14 December 1971, the applicant's immediate commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  The commander stated a careful review of the applicant's record in conjunction with his negative attitude toward honorable service indicated the best interests of the Army would be served if the applicant's discharge request was approved.

11.  On 14 December 1971, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate.

12.  On 17 December 1971, he was discharged accordingly.  He completed 1 year, 9 months, and 12 days of total active service with 295 days of time lost.  The DD Form 214 he was issued shows he was discharged on temporary military records.

13.  On 21 February 1978, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly discharged.

14.  On 9 September 1981, the ABCMR denied the applicant's request to correct his records to show he had been AWOL for less than 180 days; however, the ABCMR stated the U.S. Army Finance and Accounting Center showed the applicant had 295 days of total time lost.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  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.

	c.  Paragraph 3-7b provides that a general discharge 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.  The evidence of record shows the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Although the specific dates and reasons of the applicant's time lost are not available for review, his record contains a document referring to a military pay voucher from the U.S. Army Finance and Accounting Center that showed the applicant as a total of 295 days of time lost.

3.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  In view of the foregoing, there is no basis for upgrading the applicant undesirable discharge to either 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)                                         AR20120000982



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ABCMR Record of Proceedings (cont)                                         AR20120000982



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