IN THE CASE OF:	  

		BOARD DATE:	  20 December 2012

		DOCKET NUMBER:  AR20120010683 


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 (UD).  

2.  The applicant states his Dad was diagnosed with cancer.  

3.  The applicant provides no documentary evidence in support of his request. 

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 record shows he was inducted into the Army of the United States on 26 August 1968.  He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman) and private first class/E-3 is the highest rank he attained and held while serving on active duty.  

3.  The record shows the applicant served in the Republic of Vietnam (RVN) from 3 December 1969 through 14 March 1970.  It also shows he earned the following awards during his active duty tenure:

* National Defense Service Medal
* Combat Infantryman Badge
* Vietnam Service Medal 
* First Class Gunner Badge (M-60 Machine Gun)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bars (M-14 and M-16) 

4.  The record reveals an extensive disciplinary history that includes a Summary Court-Martial conviction for violating Articles 86 and 134 of the Uniform Code of Military Justice (UCMJ) by being absent without leave (AWOL) from 5 to             7 October 1968 and by breaking restriction on 5 October 1968, respectively.  In addition, it shows a Special Court-Martial conviction of three specifications of violating Article 86 of the UCMJ by being AWOL from 5 to 9 January 1969, 15 to 21 January 1969, and 30 January to 10 April 1969.  

5.  The record also shows the applicant accrued 258 days of time lost due to five separate periods of AWOL between 5 October 1968 and 18 January 1970 and three separate periods of confinement between 10 April 1969 and 23 June 1970.  

6.  The applicant's complete separation packet containing all the facts and circumstances surrounding his separation processing are not available for review.  However, his record contains a DD Form 458 (Charge Sheet), dated 
8 July 1970, which shows a court-martial charge was preferred against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 
24 April through on or about 19 June 1970.  

7.  The record also contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge from Active Duty) that identifies the authority and reason for his discharge.  It confirms he was separated under the provisions of Army Regulation 635-200 (Enlisted Separations) under Separation Program Number (SPN) 246 (discharge for the good of the service) and that he received a UD.  It also shows at the time of his discharge on 28 September 1970 he held the rank/grade of private/E-1 and he completed 1 year, 4 months, and 15 days of creditable active service with 258 days of time lost due to AWOL and confinement.  



8.  The record shows on 28 March 1974, the Army Discharge Review Board, after carefully considering the applicant’s entire military record and all available evidence, determined the applicant’s discharge was proper and equitable, and it voted to deny his request for an upgrade of his discharge.  

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’s request to upgrade his discharge because his father had been diagnosed with cancer has been carefully considered.  However, while his circumstances were unfortunate, there is no evidence indicating he tried to resolve his issue by seeking help through his chain of command or other available agencies.  As a result, this factor is not sufficiently mitigating to support an upgrade of his discharge.



2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  The applicant’s record reveals a disciplinary history that includes his two court-martial convictions and his accrual of 258 days of time lost due to AWOL and confinement.  It further indicates he voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.

4.  The undesirable discharge the applicant received was normal and appropriate under the regulatory guidance in effect at the time based on his overall record of service.

5.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120010683



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ABCMR Record of Proceedings (cont)                                         AR20120010683



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