IN THE CASE OF:	  

		BOARD DATE:  4 October 2012

		DOCKET NUMBER:  AR20120006556 


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 discharge.

2.  The applicant states his record was good until he came back from Vietnam.  He was young and went along with what he was taught.  He learned to drink when he was in the military.  He drank heavily and he began having marital problems.  His wife left him and he started drinking even more.  He was not offered any help for his drinking problem.  He then went absent without leave (AWOL).  He was brought back to Fort Jackson for discharge and he was rushed through the process without being given any help or explanation about Agent Orange. 

3.  The applicant did not provide any 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's records show he was born on 26 September 1949 and he was inducted into the Army of the United States at 19 years of age on 21 October 1968 and he held military occupational specialty 63B (Wheel Vehicle Mechanic). 

3.  He served in Vietnam from 29 March to 23 August 1969.  He was assigned to the 9th Supply and Transportation Battalion, 9th Infantry Division.  

4.  He was honorably discharged on 21 January 1970 for the purpose of immediate enlistment in the Regular Army.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal

5.  He enlisted in the Regular Army at 20 years of age on 22 January 1970.  He was assigned to the 177th Maintenance Company, 189th Maintenance Battalion, Fort Bragg, NC.

6.  On 21 August 1970, he pled guilty and he was convicted by a summary court-martial of one specification of being AWOL from 3 to 11 August 1970.  The court sentenced him to a forfeiture of pay, reduction in rank, and confinement without hard labor.  

7.  On 21 August 1970, the convening authority approved the sentence but suspended the reduction.  However, on 10 September 1970, he again departed his unit in an AWOL status and on 18 September 1970, the convening authority vacated the suspended sentence and ordered it executed. 

8.  On 19 August 1971, court-martial charges were preferred against him for one specification of being AWOL from 10 September 1970 to 16 March 1971.  An additional charge and specification of being AWOL from 24 to 31 August 1971 was added at a later date.  

9.  On 19 August 1971, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations). 

10.  In his request for discharge, the applicant acknowledged:

* he was making this request on his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf

11.  On 19 August and 7 September 1971, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  

12.  On 13 September 1971, consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, he was discharged on 21 September 1971.

13.  The DD Form 214 he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 11 months and 29 days of active service during this period and he had 342 days of lost time.

14.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

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 UD is normally considered appropriate.

	a.  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

	b.  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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  He was 19 years of age at the time he was inducted, 20 years of age at the time he enlisted, and nearly 21 years of age at the time he decided to go AWOL. However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their term of service. 

3.  The available evidence clearly shows he elected to go AWOL on more than one occasion.  Also, upon preferring court-martial charges against him, he did consult with counsel.  His options were: face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made.  There no evidence that the Vietnam War, drinking, or his wife caused him to make those choices. 

4.  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.  Therefore, he is not entitled to an honorable or a general 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)                                         AR20120006556



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ABCMR Record of Proceedings (cont)                                         AR20120006556



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