BOARD DATE:	  28 August 2012

		DOCKET NUMBER:  AR20120001269 


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, an upgrade of his general discharge under honorable conditions to an honorable discharge.

2.  The applicant states he disagrees with the time lost throughout his service.  He contends that in the interest of justice his discharge should be upgraded because his service was meritorious, honest, and a benefit to the nation.

3.  The applicant provides no additional evidence but is represented by counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel makes no specific request.

2.  Counsel states he represents the applicant in his Department of Veterans Affairs matter.

3.  Counsel provides no additional evidence.

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 30 October 1963.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 112.07 (Heavy Weapons Infantryman).  The highest rank/pay grade he attained while serving on active duty was private first class/E-3.

3.  On 4 February 1965, he was honorably discharged for the purpose of immediate reenlistment and he reenlisted on 5 February 1965.

4.  Item 44 (Time Lost) of his DA Form 20 (Enlisted Qualification Record) shows the following lost time for the period 5 February 1965 to 20 July 1973:

* 13 March-16 April 1967, 35 days, absent without leave (AWOL)
* 17 April-4 May 1967, 18 days, confinement
* 5 May-15 May 1967, 11 days, confinement
* 3 July -12 July 1967, 10 days, AWOL
* 10 June-30 June 1970, 21 days, AWOL
* 30 July 1970-9 November 1971, 468 days, AWOL
* 21 February 1972-21 May 1973, 456 days, AWOL

5.  His record contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) which shows that after having been dropped from the rolls on 22 February 1972, he was apprehended by the Federal Bureau of Investigation on 23 May 1973.

6.  On 29 May 1973, court-martial charges were preferred against him for three specifications of being AWOL for the periods:

* 10 June-1 July 1970 (22 days)
* 30 July 1970-10 November 1971 (469 days)
* 21 February 1972-22 May 1973 (457 days)

7.  On an unknown date, he consulted with counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

8.  In his voluntary request for discharge, he indicated he understood if his request were accepted he might be discharged under other than honorable conditions and issued an Undesirable Discharge Certificate.  By submitting his request he was admitting he was guilty of the charges against him.  He further acknowledged he understood if he received a discharge under other than honorable conditions he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

9.  He elected to submit a statement in his own behalf in which he requested a general discharge based on his numerous accomplishments and awards to include the Purple Heart, Bronze Star Medal with 1st Oak Leaf Cluster, Army Commendation Medal, and Combat Infantryman Badge.  He also stated that while serving in the Republic of Vietnam from November 1967 to December 1968, he participated in several major campaigns while assigned to the 101st Airborne Division.  He planned to attend college and work at his brother's auto body shop upon his discharge.  He requested review of his military personnel record and his education file when considering his request for discharge.

10.  On 1 July 1973, the discharge authority approved his request under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate.  The applicant was accordingly discharged on 20 July 1973.

11.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 5 years, 8 months, and 1 day of creditable active service with 285 days of time lost prior to his normal expiration of term of service (ETS) and 734 days after his normal ETS.  His DD Form 214 shows the following periods of lost time:

* 13 March-15 May 1967
* 3 July-12 July 1967
* 10 June-30 June 1970
* 30 July 1970-4 February 1971
* 5 February-9 November 1971
* 21 February 1972-21 May “1972”

12.  On 20 June 1979, the Army Discharge Review Board (ADRB) denied his petition for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  On 7 November 1980 after reviewing the findings and conclusions of the ADRB, the Secretary of the Army directed that his discharge be changed to under honorable conditions (general).

14.  He was reissued a DD Form 214 which lists the following lost time in item 18 (Remarks):

* 13 March-15 May 1967
* 3 July-12 July 1967
* 10 June-30 June 1970
* 30 July 1970-4 February 1971
* 5 February-9 November 1971
* 21 February 1972-21 May 1973

15.  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, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to honorable because his service was meritorious, honest, and a benefit to the nation was carefully considered.

2.  He states he disagrees with the time lost throughout his period of service; however, he provides no evidence to refute any period of such lost time nor does he offer any explanation for his unauthorized absences.

3.  The evidence clearly shows all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The record of evidence shows he admitted he was guilty of being AWOL on no less than three separate occasions:  10 June-1 July 1970, 30 July 1970-10 November 1971, and 21 February 1972-22 May 1973.  He voluntarily requested separation for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial and was discharged under conditions other than honorable.

4.  Subsequent to his separation, his character of service was changed to under honorable conditions.  However, based on his extensive AWOL totaling approximately 1,021 days, his service clearly did not meet the standards of acceptable conduct to warrant an honorable discharge.

5.  In view of the above, 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 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)                                         AR20120001269



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ABCMR Record of Proceedings (cont)                                         AR20120001269



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