BOARD DATE:	  21 June 2012

		DOCKET NUMBER:  AR20120001111 


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, that his undesirable discharge be upgraded. 

2.  The applicant states he served honorably during the period September 1965 - March 1968 and reenlisted for warrant officer flight training or a unit outside of Thailand.  He contends that he was denied his reenlistment option and when he pursued it his first sergeant wrote him up for anything that "could stick."

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 11 September 1968.

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 24 September 1965 and was awarded military occupational specialty 05H (Morse Interceptor) upon completion of initial entry training.  He served in Vietnam from 28 November 1966 to 27 June 1968.

3.  On 11 September 1968, while stationed at Fort Hood, Texas, he was honorably discharged for the purpose of immediate reenlistment.  His DD Form 4 (Enlistment Record) shows "present duty assignment" as his reenlistment option.

4.  On 18 September 1969, he was found guilty by a special court-martial of one specification of being absent without leave (AWOL).  

5.  On 26 January 1970, he received nonjudicial punishment (NJP) for being AWOL during the period 13 January to 26 January 1970.

6.  On 17 April 1970, court-martial charges were preferred against him for one specification of being AWOL from 5 February to 17 March 1970.

7.  He consulted with legal counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  On 31 July 1970, a representative from the office of the Staff Judge Advocate (SJA) reviewed the separation action and found it legally sufficient.  The SJA representative's statement indicates in addition to the applicant's court-martial conviction on 18 September 1969 and the NJP that he received on
26 January 1970, he had also received NJP on 8 October 1968 for one specification of being AWOL.

9.  On 3 August 1970, the appropriate authority approved his request and directed that he receive an Undesirable Discharge Certificate.  On 14 August 1970, he was discharged accordingly.  Item 44 (Lost Time) of his DA Form 20 (Enlisted Qualification Record) shows he accrued 56 days of lost time.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 Veterans Administration benefits, 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.

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

13.  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 contention that his discharge should be upgraded has been carefully reviewed.

2.  He contends that he reenlisted for warrant officer flight training or a unit outside of Thailand and that he was denied these options and when he pursued it the first sergeant literally wrote him up for everything that he could.  However, this contention is not supported by the available evidence which shows his reenlistment option was "present duty assignment."

3.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  His voluntary request for discharge under the provisions of chapter 10, Army Regulation 
635-200, to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP on two occasions, a court-martial conviction, and 56 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, his request should be denied.

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)                                         AR20120001111



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ABCMR Record of Proceedings (cont)                                         AR20120001111



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