IN THE CASE OF:	  

		BOARD DATE:	  30 May 2013

		DOCKET NUMBER:  AR20120019946 


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 upgrade of his undesirable discharge.

2.  The applicant states:

* he was granted leave by the Army because of the hardship of his mother being ill and dying, but the paperwork for him to prove it was destroyed in a fire
* he served in Vietnam
* he took leave to be with his mother before she died
* he went back to the Army after 145 days

3.  The applicant provides:

* certificate of completion of military occupational specialty (MOS) training
* MOS diploma
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 enlisted in the Regular Army on 6 February 1970 for a period of 3 years.  He completed his training and was awarded MOS 61B (Watercraft Operator).  He arrived in Vietnam on 21 July 1970.

3.  On 18 April 1971, nonjudicial punishment (NJP) was imposed against the applicant for being disrespectful in deportment.

4.  He departed Vietnam on 20 July 1971.

5.  He was absent without leave (AWOL) on 25 August 1971, he was apprehended by civil authorities on 7 January 1972, and he was returned to military control on 10 January 1972.  On 18 January 1972, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.

6.  On 31 January 1972 after consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  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.  In summary, he stated:

* he served one 12-month tour of duty in Vietnam
* he had a good record, except for one Article 15
* he wanted to get out of the Army because he could not adjust to military life and this was the reason for being AWOL

7.  On 10 February 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

8.  He was discharged under other than honorable conditions on 1 March 1972 for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 1 year, 8 months, and 2 days of total active service with 144 days of lost time.

9.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, the 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 to an individual who was discharged for the good of the service.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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 granted leave/took leave to be with his mother before she died and he returned after 145 days.  The evidence shows he was AWOL on 25 August 1971, he was apprehended by civil authorities on 7 January 1972, and he was returned to military control on 10 January 1972.  In addition, he indicated on 31 January 1972 that he was AWOL because he couldn't adjust to military life.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, 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.  His record of service included one NJP and 144 days of lost time.  As a result, 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 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)                                         AR20120019946



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ABCMR Record of Proceedings (cont)                                         AR20120019946



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