IN THE CASE OF:	  

		BOARD DATE:  27 September 2012

		DOCKET NUMBER:  AR20120007045


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 characterization, from under other than honorable conditions to under honorable conditions (general).

2.  The applicant states:

* he was told he would receive a general discharge
* he didn’t realize he had received an under other than honorable conditions discharge until 1990 – he wasn’t concerned about the wording because his discharge papers stated he would receive full benefits
* he is now being told he must have his discharge upgraded in order to receive benefits
* he had no issues with drugs or alcohol, nor any misconduct, during his period of military service – his issue was his time spent absent without leave (AWOL)
* general discharges are appropriate for AWOL separations

3.  In a separate statement to the Board, dated 30 March 2012, the applicant states:

* when he was discharged in 1972, he was told he would receive an under honorable conditions (general) discharge
* in 1990 he discovered his discharge paperwork showed he received an under other than honorable conditions discharge
* he is now told he must have his discharge upgraded to become eligible for benefits from the Department of Veterans Affairs (VA)
* he served in the Republic of Vietnam in 1969 without incident
* in December 1969, his brother was in a serious accident – by the time he returned home on emergency leave his brother had passed away
* after his emergency leave, he was sent to Fort Benjamin Harrison, IN, but after serving in Vietnam, it was impossible to sit idle – he requested to return to Vietnam but his request was denied
* since he couldn’t return to Vietnam, he requested a hardship discharge based on his brother’s death and his mother’s inability to provide financial support to herself and his 2 younger siblings – this too was denied
* he never received any military pay after December 1969 – this affected his family's ability to maintain their home
* he was sent to Korea, where he received another Red Cross message regarding his sister, so he again took emergency leave to return home – fortunately his sister did not die
* this time, he decided to stay home to help his family
* during his last year in the Army, he was AWOL on 2 or 3 occasions 
* in May 1972, he was placed in the stockade at Fort Leonard Wood, MO and discharged
* he was told that because of all he had been through, he would receive an under honorable conditions (general) discharge
* he is entitled to a general discharge – he had no issues throughout his service with drugs or alcohol – his only problem was his AWOL time

4.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a 2-page letter of support from his sister
* his brother’s State of Indiana death certificate 

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 was inducted into the Army of the United States on 3 June 1969.  He completed training and was awarded military occupational specialty 51B (Carpenter).  The highest rank/grade he attained during his period of military service was private first class/E-3.

3.  On 23 July 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from his assigned unit, on or about 22 July 1969.

4.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 31 October 1969 to on or about 18 January 1970.

5.  On 9 August 1970, he received NJP under the provisions of Article 15 of the UCMJ for being AWOL from his assigned unit, from on or about 26 July 1970 to on or about 5 August 1970.

6.  On 21 April 1971, he received NJP under the provisions of Article 15 of the UCMJ for being AWOL from his assigned unit, from on or about 28 November 1970 to on or about 17 January 1971, and from on or about 18 January 1971 to on or about 23 March 1971.

7.  On 3 May 1971, his unit reported him AWOL.  On 10 June 1971, his unit reported him dropped from the rolls.

8.  On 2 November 1971, he returned to military control. 

9.  On 8 November 1971, his unit reported him AWOL.  On 17 May 1972, he returned to military control.

10.  On 24 May 1972, court-martial charges were preferred against him for a single specification of a single charge of AWOL, from on or about 8 November 1971 to on or about 17 May 1972.

11.  On 25 May 1972, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, 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 (Personnel Separations – Enlisted Personnel), chapter 10.

12.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

13.  On 5 June 1972, the separation authority approved his request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

14.  On 8 June 1972, he was discharged accordingly.  The DD Form 214 he was issued shows he was credited with the completion of 1 year, 9 months, and         28 days of total active service, with approximately 436 days of lost time due to being AWOL.  He authenticated this form by placing his signature in the appropriate block.

15.  His record does not contain any documentation that indicates he was counseled regarding the possible receipt of an under honorable conditions (general) discharge.

16.  His record does not contain any documentation that indicates he didn't receive military pay after December 1969.

17.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

18.  He provides a 2-page letter of support from his sister, who summarizes the difficult times the family went through during the applicant’s service in the Republics of Vietnam and Korea, related to his brother’s death and his sister’s health issues, as well as the emotional toll these issues took on the applicant, resulting in his AWOL service.

19.  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 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 an individual who was discharged for the good of the Service.

20.  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.

21.  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 makes a number of contentions – essentially stating his service in the Republic of Vietnam was without incident and his issues did not begin until after his return from Vietnam and reassignment to the Republic of Korea, compounded by his inability to financially support his family since he wasn't receiving military pay.  

2.  The applicant’s service without incident in the Republic of Vietnam, albeit a short duration of 3 months and 8 days, is acknowledged; however, the evidence of record shows he was AWOL and received NJP prior to his assignment in Vietnam.   

3.  Despite his claims to the contrary, the available record contains no evidence his military pay was stopped, or he had any issues with receiving his military pay. 

4.  He contends he is entitled to an under honorable conditions (general) discharge, since he had no issues throughout his service with drugs or alcohol – his only problem was his periods of AWOL service.  

5.  AWOL service is misconduct, and the evidence of record shows his misconduct began before his service in the Republic of Vietnam.  

6.  His record indicates he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

7.  The available evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

8.  Based on his record of indiscipline, numerous extended periods of AWOL throughout his period of military service, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is entitled to neither a general nor an honorable 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20120007045



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