BOARD DATE:	 27 November 2012 

		DOCKET NUMBER:  AR20120008622 


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 (UD) be upgraded to a general discharge.

2.  The applicant states:

	a.  He voluntarily enlisted in the Army on 30 July 1969 knowing it would mostly likely mean a tour in Vietnam.  He completed the military police service school.  He served in Vietnam for 10 months and 21 days from 13 January through 3 December 1970.  While in Vietnam he patrolled roads and escorted convoys.  His unit was cited for award of the Presidential Unit Citation.  After returning from Vietnam he served as a military police, desk sergeant, and senior patrol leader and patrolman.

	b.  He returned home on leave and it became extremely difficult to leave his family and return to his base.  His mother was very ill as she had problems with her heart.  He felt extremely guilty for his mother's ill health which was due to stress and her constant worrying.  Also, his future father-in-law became very ill, was hospitalized, and passed away.  These facts greatly contributed to his not returning to base.  He did, however, return to base (Fort Meade, MD, of his own free will.

	c.  After being discharged he maintained employment and has been a law-abiding citizen.  His health has now deteriorated due to being diagnosed with prostate cancer.  He is receiving daily radiation treatment.  It is extremely difficult for him to properly perform his duties at work and home.  He sincerely regrets his actions of being absent without leave (AWOL).  He has always been proud to have served his country and it would be a blessing to have his discharge upgraded.

3.  The applicant provides 

* DA Form 20 (Enlisted Qualification Record) (page 4)
* Recommendation for Discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* UD Certificate
* Cancer diagnosis progress notes (10 pages)
* Surgical Pathology Report (4 pages)
* Cancer Care Center consult notes (7 pages)
* letter from the Army Review Boards Agency
* three VA Forms 21-4138 (Department of Veterans Affairs (VA) - Statement in Support of Claim)

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 30 July 1969, for 3 years.  He completed training and he was awarded military occupational specialty 95B (Military Police).  He was promoted to pay grade E-4 on 10 April 1970.

3.  He served in Vietnam from 13 January 1970 through 3 December 1970.  Upon his return from Vietnam he was assigned to the 561st Military Police Company, Fort Myer, VA, on 9 January 1971.  

4.  A DD Form 458 (Charge Sheet) was prepared by the Commander, Company B, U.S. Army Personnel Control Facility, Fort George Meade, MD, on 23 August 1972.  The applicant was charged with three specifications of being AWOL from 7 July to 28 July 1971, from 7 September to 15 October 1971, and from 29 October 1971 to 17 August 1972.

5.  On 23 August 1972, special court-martial charges were preferred against him.

6.  On 23 August 1972, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be discharged under conditions other than honorable and furnished a UD Certificate. He further acknowledged he understood as a result of the issuance of such a discharge he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 1 September 1972, the Commander, U.S. Army Personnel Control Facility, Fort Meade, recommended the applicant’s separation from the service with a UD.

8.  On 14 September 1972, the appropriate separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UD Certificate and reduction to pay grade E-1.

9.  He was discharged in pay grade E-1 on 14 September 1972, under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial, with an UD Certificate.  He was credited with completing 2 years, 1 month, and 28 days of net active service and 352 days of time lost.

10.  On 27 June 1975, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 stated a member who had 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 in lieu of trial by court-martial at any time after charges had been preferred.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  A UD was normally considered appropriate at the time.
12.  Army Regulation 635-200, paragraph 3-7b, states 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 evidence of record shows the applicant enlisted in the RA on 30 July 1969, served in Vietnam, and attained pay grade E-4.  Upon his return from Vietnam he was assigned to Fort Myers, VA.  On 23 August 1972, he, a military policeman, was charged with three lengthy periods of being AWOL.  Special court-martial charges were preferred against him for 352 days of time lost.

2.  After consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence and submit a statement in his own behalf.  He also acknowledged he understood he could be furnished a UD Certificate.  He was discharged accordingly on 14 September 1972.

3.  He has provided insufficient evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his UD.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

4.  Without evidence to the contrary, it appears his administrative separation action was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  

5.  His current health conditions are noted; however, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical and/or other benefits administered by the VA.

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)                                         AR20120008622



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ABCMR Record of Proceedings (cont)                                         AR20120008622


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