IN THE CASE OF:	  

		BOARD DATE:  4 December 2012

		DOCKET NUMBER:  AR20120009525 


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 he had great difficulty when he arrived in Vietnam and he had a drinking problem at the time of his discharge.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 214 (Report of Separation from Active Duty), and a letter of support. 

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 was inducted into the Army on 24 November 1970.  He was awarded the military occupational specialty of 12B (Combat Engineer).

3.  He reenlisted in Germany on 23 February 1972 for a period of 6 years.  The highest rank/grade he held was sergeant/E-5.

4.  His records are void of any evidence he served in Vietnam.

5.  He accepted nonjudicial punishment (NJP):

* on 19 August 1974 for failing to go at the prescribed time to his appointed place of duty
* on 20 January 1975 for failing to go at the prescribed time to his appointed place of duty and for twice disobeying a lawful order
* on 12 November 1975 for being absent from his place of duty
* on 21 October 1976 for disobeying a lawful order
* on 18 February 1977 for failing to go at the prescribed time to his appointed place of duty and for using disrespectful language toward his superior
* on 13 April 1977 for using disrespectful language toward his superior 

6.  On 5 July 1977, court-martial charges were preferred against him for being AWOL during the period on or about 25 May-27 June 1977.

7.  On 19 July 1977, 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.  He further acknowledged that he was guilty of the charge(s) against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.

	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.  He did not submit a statement on his own behalf.

	b.  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 an undesirable 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.  He accepted NJP: 

* on 29 July 1977 for failing to go to his appointed place of duty and for being absent from his place of duty
* on 25 August 1977 for being absent without leave (AWOL) during the period on or about 2-4 August 1977

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

10.  On 19 September 1977, 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 6 years, 8 months, and 5 days of net active service with 53 days of time lost.

11.  On 8 June 1979, the Army Discharge Review Board denied the applicant's request to upgrade his undesirable discharge to a general discharge.

12.  He submits a letter of support indicating he is no longer abusing alcohol.

13.  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.  He contends he had a problem with alcohol at the time and that he no longer abuses alcohol.  However, this does not mitigate his misconduct at the time that led to his discharge.

2.  He received NJP on eight separate occasions for offenses including failing to go at the prescribed time to his appointed place of duty, disobeying lawful orders, and for being absent from his place of duty.  Court-martial charges were preferred against him for being AWOL.  Therefore, his service was unsatisfactory.

3.  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.

4.  His 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.

5.  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)                                         AR20120009525



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ABCMR Record of Proceedings (cont)                                         AR20120009525



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