IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120005609 


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general, under honorable conditions discharge (GD).

2.  The applicant states he enlisted in the Army on 8 August 1969, and served in Vietnam until 6 September 1970.  He claims that he had a perfect record until he went absent without leave (AWOL) on 9 August 1982.  He states he does not know what happened that caused him to change.  He believes temporary insanity was the reason.  He should have taken a court-martial and served his time out.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 1 August 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71T (Equipment Maintenance Clerk).  

3.  The applicant's records show he served in the Republic of Vietnam (RVN) during the period 5 January 1970 through 28 November 1970.  He was released from active duty after his initial enlistment on 31 January 1972 at the rank/grade of specialist four/E-4.

4.  After a break in service, he again enlisted, in the rank and pay grade of specialist four/E-4 on 19 December 1972 and continued to serve through a series of continuous reenlistments until his discharge on 16 June 1983.

5.  The applicant’s DD Form 214 for the period ending 16 June 1983 shows the following awards:

* National Defense Service Medal 
* RVN Campaign Medal
* Vietnam Service Medal
* One Overseas Service Bar
* RVN Gallantry Cross with Palm Unit Citation
* Army Good Conduct Medal 4th award
* Army Service Ribbon

6.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record) shows that he was AWOL during the following periods of service:

* 9 August 1982 to 6 September 1982 
* 21 October 1982 to 14 November 1982

7.   Item 29 (Dates of Time Lost During This Period) of the applicant's DD Form 214 shows that he was also AWOL during the period 1 December 1982 to 28 February 1983.  

8.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, the record  includes a properly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service-in lieu of trial by court-martial on 16 June 1983.  It further shows he completed 4 years, 10 months, and 5 days of creditable active military service and accrued 143 days of lost time during the period under review.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 UOTHC is normally considered appropriate.

11.  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 request for upgrade of his UOTHC discharge to a GD has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The applicant's record is void a separation packet containing the facts and circumstances that led to his voluntary discharge.  However, it does include a properly-constituted DD Form 214 that shows he was discharged on 16 June 1983 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service-in lieu of court-martial.  His disciplinary record shows he was AWOL on three different occasions and accrued 143 days of lost time

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. 

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This conduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant’s 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)                                         AR20120005609



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ABCMR Record of Proceedings (cont)                                         AR20120005609



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