BOARD DATE:	  3 January 2013

		DOCKET NUMBER:  AR20120010553 


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 to honorable.

2.  The applicant states:

* There is no error or injustice but he would like his discharge corrected
* He was a 21 year old guy who came home from Vietnam and thought he was being transferred to Fort Dix, NJ only to be transferred to Fort Riley, KS
* He would have stayed in Vietnam with his brother had he known that he was being transferred to Kansas
* He was given a choice of either discharge or go to Kansas   

3.  The applicant provides:

* Letter of Commendation
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DD Form 215 (Correction to DD Form 214)

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 born on 28 September 1949.  At age 19, on 3 June 1969, he enlisted in the Regular Army for a period of 3 years.  He completed his training and he was awarded military occupational specialty 63B (wheeled vehicle mechanic).  He arrived in Vietnam on 7 January 1970. 

3.  On 5 March 1970, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation.

4.  He departed Vietnam on 6 January 1971 and went absent without leave (AWOL).  He returned to military control on 5 June 1971.  He went AWOL a second time on 7 October 1971 and returned to military control on 15 February 1972.  In March 1972, charges were preferred against him for these periods of AWOL.  

5.  On 29 March 1972, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  In his request he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of 
an undesirable discharge.  He elected to submit a statement in his own behalf and he provided a letter, dated 27 January 1972, from a retired U.S. Naval Reserve neuropsychiatrist.  The doctor stated:

* He conducted a psychiatric evaluation on the applicant
* Upon his return from Vietnam he was assigned to Fort Riley and he tried to get his orders changed 
* He went AWOL because he wanted to be near his girlfriend in New Jersey
* When he returned to the United States he could not bear the thought of waiting 18 months to be discharged
* He was worried about his mother
* All this "stress" in his mind justified his first period of AWOL
* The second AWOL was prompted by his feeling that a special court-martial was not fair for a first AWOL offense by a Vietnam veteran
* He was not given any legal help or advice
* His mental status showed him to be correctly oriented 
* His affect was appropriate and there was no thought disorder
* His judgment seemed poor and his actions impulsive under stress
* Diagnostically, he was classified as having a passive-aggressive personality disorder
* He recommended the applicant be evaluated by an Army psychiatrist to determine if he was psychiatrically fit to remain in the Army    

6.  On 14 April 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

7.  On 4 May 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an Undesirable Discharge Certificate.  He completed 
2 years, 1 month, and 24 days of total active service with 282 days of lost time.

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

9.  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 Veterans Administration 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.

	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 contends he was a 21 year old guy; however, age is not a sufficiently mitigating factor.  He was 19 years of age when he enlisted and successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.

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

3.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

4.  Since his record of service included 282 days of lost time and one NJP, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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)                                         AR20120010553



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ABCMR Record of Proceedings (cont)                                         AR20120010553



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