IN THE CASE OF: 

		BOARD DATE:	    27 November 2012

		DOCKET NUMBER:  AR20120009128 


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 under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states after serving in the Republic of Vietnam (RVN), he got orders to Korea after a Soldier had his head chopped off and he was scared to go back to war.  

3.  The applicant refers to Department of Veterans Affairs (VA) records; however, he provides no documentary 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 record shows the applicant initially enlisted in the Regular Army (RA) on 10 August 1967.  He served for 2 years, 11 months, and 21 days until being honorably released from active duty (REFRAD) by reason of overseas returnee on 31 July 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he held the rank of specialist four (SP4)/E-4 and earned the following awards during this period of service:

* Combat Infantryman Badge
* Vietnam Service Medal with bronze service star
* 2 Overseas Service Bars
* National Defense Service Medal 
* RVN Campaign Medal 
* RVN Gallantry Cross with Palm Unit Citation

3.  The applicant’s disciplinary history for his first period of service includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions between 4 December 1968 and 5 June 1970.  

4.  On 7 May 1974, the applicant again enlisted in the RA and began the enlistment period under review.  His record for this period of service shows no overseas service and no additional awards or decorations earned during this period.   

5.  The disciplinary history for this period of enlistment shows the applicant departed absent without leave (AWOL) on 14 October 1976, while en route to Korea.  He remained away for 207 days until returning to military control at 
Fort Bragg, North Carolina, on 8 May 1977.  He again departed AWOL on         23 May 1977, and remained AWOL for 8 days until returning to military control at 
Fort Bragg on 30 May 1977.  

6.  A court-martial charge was preferred against the applicant for his AWOL offenses and on 24 June 1977, he consulted with legal counsel.  After being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.



7.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge, he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive a UOTHC discharge.  He further stated he understood that receipt of a UOTHC discharge could result in him being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

8.  On 11 July 1977, the separation authority approved the applicant's request for discharge and directed the applicant be issued a UOTHC discharge, and that the applicant be reduced to the lowest enlisted grade.  On 3 August 1977, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 2 years, 7 months, and 
24 days of creditable active military service during the enlistment period under review and that he accrued 213 days of time lost due to AWOL.  

9.  There is no indication in the record that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s      15-year statute of limitations.  

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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 discharge UOTHC is normally considered appropriate.

	b.  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.



	c.  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 request to upgrade his discharge has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor during the period of enlistment under review and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge, and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant’s first period of honorable service, which includes his combat service in the RVN, is appropriately recognized on the DD Form 214 he was issued for this period of service on 31 July 1970.  

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)                                         AR20120009128



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ABCMR Record of Proceedings (cont)                                         AR20120009128



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