BOARD DATE:	  13 November 2012

		DOCKET NUMBER:  AR20120007011 


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.

2.  He states upon his return from Vietnam he was foolish and if he could repeat his service it would be different.

3.  He provides no additional documentation. 

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.  His military records show he enlisted in the Regular Army on 16 November 1970.  He was awarded military occupational specialty 57F (Memorial Activity Specialist).  The highest rank/grade he held was specialist four/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from October 1971 to June 1972.

4.  On 15 September 1972, he reenlisted for a period of 6 years.

5.  He accepted nonjudicial punishment (NJP):

* on 2 April 1972 for failing to go at the prescribed time to his appointed place of duty while serving in Vietnam
* on 5 February 1973 for failing to go at the prescribed time to his appointed place of duty
* on 4 June 1973 failing to go at the prescribed time to his appointed place of duty
* on 31 July 1973 for being absent without leave (AWOL) during the period 4-9 June 1973
* on 23 October 1973 for being AWOL during the period 10-17 October 1973

6.  On 18 January 1974, court-martial charges were preferred against him for being AWOL during the period on or about 9 November 1973 to 16 January 1974.

7.  On 29 January 1974, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to his request.

	a.  He further acknowledged he understood that if his discharge request were accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State law.

	b.  He submitted a statement on his own behalf.  He stated he had been advised by his lawyer that he could request a hardship discharge but he did not believe he would qualify and did not desire to submit a request for one.  He further stated he had previously attempted to get a discharge under the provisions of chapter 10, Army Regulation but was unsuccessful.  He listed several personal and family-related issues.  He concluded by stating that for the benefit of the Army they should quit wasting money on him and do more for the good Soldiers.  It would not matter where the Army sent him, he would leave.   

	c.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

8.  The separation authority approved the applicant’s request for discharge and directed he be given an Undesirable Discharge Certificate.

9.  On 4 March 1974, he was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  He completed a total of 3 years and 25 days of net active service with 84 days of time lost.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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 VA 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 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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was 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.  The applicant received NJP on five occasions (three times for failing to go at the prescribed time to his appointed place of duty and twice for being AWOL).  Court-martial charges were also preferred against him for being AWOL.  Therefore, his service was unsatisfactory.

2.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  This serious misconduct warranted his discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  The records contain no indication of procedural or other errors that would have jeopardized his rights.

4.  In view of the foregoing, there is no basis for upgrading his discharge 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)                                         AR20120007011



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ABCMR Record of Proceedings (cont)                                         AR20120007011



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