IN THE CASE OF:	  

		BOARD DATE:	  11 October 2012

		DOCKET NUMBER:  AR20120007548 


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 his undesirable discharge be upgraded to a general or an honorable discharge.

2.  The applicant states he had a car accident when he was going on leave and he was in the hospital approximately 2 - 3 weeks and unable to report back to base.  The hospital contacted his unit and he contacted his unit when he regained consciousness.  When he got his next duty orders and reported to Fort Dix, they had none of his records.  He had to collect temporary pay while at Fort Dix and then it was determined he had been absent without leave (AWOL).  He states he served in Vietnam prior to his car accident with the 134th Transportation Company and flew 3 missions in a Huey sometime during 1967.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 20 September 1966.  He immediately reenlisted on 19 July 1967.  

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned in Germany to the:

* 14th Armored Cavalry from 27 June - 1 September 1967
* 724th Maintenance Battalion from 5 September 1967 - 22 July 1968

4.  He was promoted to specialist five (SP5)/pay grade E-5 on 12 August 1968.

5.  His DA Form 20 does not show any service in the Republic of Vietnam.

6.  On 10 September 1968, he accepted nonjudicial punishment for failure to obey a lawful order to obey posted speed limits and register his vehicle within 
72 hours.

7.  In a letter, dated 18 March 1970, his company commander considered the applicant a substandard Soldier who should be barred from reenlistment.  The commander stated the applicant had been in civilian confinement since 
5 December 1969, on bad check charges.  Additionally, upon his release from Riley County Jail, Manhattan, KS, he still faced time to serve in three other counties on charges of bad checks.

8.  On 25 May 1973, court-martial charges were preferred against the applicant for being:

* AWOL from on or about 2 June 1970 to on or about 7 January 1971
* AWOL from on or about 13 April 1971 to on or about 10 May 1973

9.  On 31 May 1973, he voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* not making a statement in his own behalf
* afforded the opportunity to speak with counsel prior to making his request
* advised he might be furnished an Undesirable Discharge Certificate

10.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  On 22 June 1973, an administrative determination was made that he was absent without proper authority during the periods from:

* 5 December 1969 - 19 March 1970
* 16 - 27 May 1970

12.  On 12 July 1973, his commander recommended approval of his request for discharge and that he be issued an Undesirable Discharge Certificate.

13.  On 20 July 1973, the appropriate authority approved his request for discharge for the good of the service, directed he be reduced to the lowest grade, and directed he be issued an Undesirable Discharge Certificate.

14.  On 14 August 1973, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service with an undesirable discharge.  He completed 3 years and 
27 days of net active service that was characterized as under conditions other than honorable.  He had 432 days time lost and 657 days time lost subsequent to normal expiration of his term of enlistment.

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

16.  Army Regulation 635-200 sets forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10, in effect at the time, stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, at the time an Undesirable Discharge Certificate was normally 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 had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been 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.  He contends he was in the hospital for 2-3 weeks following a car accident and should not have been reported AWOL.  He did not indicate when this accident occurred or when he was hospitalized.  He has provided no evidence to support his contention.  The first period of AWOL he was charged with was for a little over 7 months and the second period of AWOL he was charged with was for a period of over 2 years.  Neither of these periods fit a "2-3-week period of hospitalization."  Therefore, his contention is not considered a mitigating factor in this case.

2.  There is no evidence in his Military Personnel Records Jacket that he served in the Republic of Vietnam.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in compliance with applicable regulations.

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service at the time it was issued.

5.  He had been promoted to SP5, a position of authority and responsibility.  In promoting him to SP5, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a SP5, he was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  He violated this special trust and confidence.

6.  He was charged with two periods of AWOL for 7 months and over 2 years.  In addition, he had 432 days time lost including  time lost due to civilian confinement for writing bad checks.  Therefore, his service was clearly unsatisfactory.

7.  In view of the above, there is an insufficient basis for upgrading his undesirable discharge to a general or 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)                                         AR20120007548



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ABCMR Record of Proceedings (cont)                                         AR20120007548



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