IN THE CASE OF:	  

		BOARD DATE:	  21 August 2012

		DOCKET NUMBER:  AR20120004059 


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 that his undesirable discharge (UD) be upgraded to a more favorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded because he had a previous honorable discharge and he was awarded the Bronze Star Medal.  He also states he was granted "amnesty," because he served 1 year and 
3 months in the A-Shau Valley in Vietnam, and he was also exposed to Agent Orange. 

3.  The applicant provides various copies of documents from his military records.

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.  On 9 August 1967, the applicant was single when he enlisted in the Regular Army in Fairmont, West Virginia for a period of 3 years and training as a field artillery operations and intelligence assistant.  He completed basic training at Fort Bragg, North Carolina and advanced individual training at Fort Sill, Oklahoma before being transferred to Vietnam on 15 January 1968. 

3.  On 8 June 1968, he submitted a request for a 6-month extension of his tour in Vietnam and 30 days of special leave.  On 12 June 1968, his request was approved and his date eligible for return from overseas was adjusted to 15 July 1969.

4.  On 18 April 1969, he reenlisted for a period of 6 years.  He departed Vietnam on special leave on 23 May 1969 with a return date of 24 June 1969.  However, he failed to return and he was reported in an absent without leave (AWOL) status on 24 June 1969.  He was dropped from the rolls of the Army as a deserter and remained absent until he was apprehended by civil authorities on 7 April 1972.  He was returned to military control and placed in confinement at Fort Knox, Kentucky. 

5.  On 23 June 1972, he again departed AWOL and remained absent until he was arrested by civil authorities in December 1972 and charged with forgery.  He was found guilty on 9 February 1973 and released to military authorities on 
12 February 1973.  Eight days later he escaped from military confinement and was AWOL 76 days.  He surrendered to military authorities on 7 May 1973 and charges were preferred against him for all of his absences.  He was AWOL 1,426 days. 

6.  On 14 May 1973, after consulting with counsel, the applicant submitted a request for 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 indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he 
could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept a UD expecting that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He also indicated that he went AWOL because his wife and two children had no place to live and he wanted to get them settled.
7.  The appropriate authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  Accordingly, on 30 May 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with a UD.  He completed 1 year, 11 months, and 21 days of total active service with 1,426 days of time lost due to being AWOL and in confinement.  His awards included the Bronze Star Medal with one Oak Leaf Cluster, National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.

9.  On 3 January 1979 he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He stated that he had a good record until his wife asked him for a divorce upon his return from Vietnam.  He also requested that his good conduct in Vietnam be considered in upgrading his discharge.

10.  The available evidence does not mention "amnesty" or that the applicant was exposed to Agent Orange.

11.  On 5 March 1980, after considering all of the available evidence, the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request.

12.  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.

13.  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.

14.  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 voluntary request for discharge 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.  Accordingly, the type of discharge directed and the reasons for the discharge were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the applicant's repeated misconduct in the form of repeated absences for an extensive amount of time.  He was AWOL longer than he served.  Accordingly, his service simply did not rise to the level of a general discharge.

4.  Therefore, there appears to be no basis to grant his request for an upgrade of 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 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)                                         AR20120004059



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ABCMR Record of Proceedings (cont)                                         AR20120004059



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