IN THE CASE OF:	  

		BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120004033 


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 general discharge.

2.  The applicant states he initially enlisted in the Army in 1968.  After his tour of duty in Vietnam he was assigned to Schofield Barracks in Hawaii.  He reenlisted and received a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing honorable service.  He was transferred to Fort Riley, KS, and got married while taking leave at home in Tennessee.  His wife wanted to make weekend trips to Tennessee and he was constantly late returning to his unit.  She was then pregnant with their first child so he stayed home and then went to Fort Campbell, KY, to request discharge.  It has been over 40 years since he got out.  He was young and newly married.  He tried to please his wife, but he hurt himself doing it.

3.  The applicant provides:

* DD Form 214 effective “20” April 1970
* DD Form 214 effective 16 February 1972

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.  He initially enlisted in the Regular Army on 18 July 1968 at 18 years of age.  He served in the Republic of Vietnam from 18 December 1968 to 3 August 1969. 
He was honorably discharged on 19 April 1970 and immediately reenlisted.

3.  His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from 28 September to 22 October 1970.  There is no disposition of this period of absence in his Military Personnel Records Jacket.

4.  On 9 November 1971, he accepted nonjudicial punishment for being AWOL from on or about 1 November to on or about 4 November 1971.

5.  Court-martial charges were preferred against him for being AWOL from on or about 8 December 1971 to on or about 24 January 1972.

6.  He voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* not making a statement in his own behalf
* afforded the opportunity to speak with counsel prior to making his request
* advised he might be furnished an Undesirable Discharge Certificate

7.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* 
might be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  After careful review of the applicant's records in conjunction with his negative attitude toward honorable service, his commander recommended approval of his request for discharge.  The commander recommended that the applicant be furnished an undesirable discharge.

9.  On 11 February 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate.

10.  On 16 February 1972, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service with an undesirable discharge.  He completed 1 year, 7 months, and 15 days active service that was characterized as under conditions other than honorable.  His DD Form 214 shows he had 73 days of lost time.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10, in effect at the time, stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, at the time an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.


	c.  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.  He served honorably during the period from 18 July 1968 to 19 April 1970 and he received an honorable discharge.  However, during his second enlistment he had 73 days of AWOL.  Therefore, his service during his second enlistment is considered unsatisfactory.

2.  His age at the time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  His 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.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service at the time it was issued.

5.  Based on the foregoing, there is no basis for upgrading 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)                                         AR20120004033



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ABCMR Record of Proceedings (cont)                                         AR20120004033



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