IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120006333 


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 upgrade of his undesirable discharge.

2.  The applicant states:

* he served well until his mother died
* during the Vietnam War he went absent without leave (AWOL) when he found out his mother was dying and she did not have a lot of time left

3.  The applicant did not provide any 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 13 February 1969 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11B (light weapons infantryman).

3.  Item 31 (Foreign Service) and Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) does not show he served in Vietnam during his active duty service.

4.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Expiration of Service) of his DA Form 20 shows the following:

FROM
TO (inclusive)
DAYS
REASON
7 October 1969
3 November 1969
    28
AWOL
4 January 1969
5 January 1970
      2
AWOL
10 February 1970
11 March 1970
    28
AWOL
12 March 1970
2 June 1970
    83
Dropped From the Rolls (DFR)
3 June 1970
7 June 1970
      5
Confinement
4 July 1970
8 July 1970
      5
AWOL/DFR
25 August 1970
7 December 1970
  105
DFR

                 TOTAL
  256

5.  On 9 December 1969, the applicant pled guilty to and he was convicted by a special court-martial of one specification of AWOL from 7 October to 4 November 1969.  The court sentenced him to a reduction to private (PV1)/E-1 and forfeiture of pay for 4 months.  On 11 December 1969, the convening authority approved the sentence and ordered it executed. 

6.  His record contains a DA Form 2476 (Application for Separation - Hardship or Dependency), dated 13 August 1970, that shows he requested to be separated in order to help take care of his mother who had suffered a heart attack on 9 May 1970.  On 15 September 1970, the appropriate authority disapproved the applicant's request for separation.

7.  The specific facts and circumstances surrounding the applicant's discharge processing are not available for review.  However, his record contains an endorsement, dated 11 March 1971, that shows the separation authority, a major general, approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, and directed the applicant be furnished an Undesirable Discharge Certificate.

8.  On 17 March 1971, the applicant was discharged accordingly.  He completed 1 year, 4 months, and 19 days of total active service with 256 days of time lost.
9.  There is no indication he petitioned 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.

	a.  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.

	b.  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

	c.  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 record is void of the specific facts and circumstances surrounding his discharge.  It appears he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

2.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge processing, it does contains a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  It also confirms he had 256 days of time lost due to AWOL/DFR/
confinement.  However, there is no evidence that the Vietnam War or his mother's illness caused him to make his unauthorized absence choices.

3.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20120006333



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ABCMR Record of Proceedings (cont)                                         AR20120006333



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