IN THE CASE OF:	  

		BOARD DATE:	  11 June 2013

		DOCKET NUMBER:  AR20120021599 


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 general under honorable conditions.

2.  The applicant states he felt his service in war was very important and was something he cannot forget.  He took his discharge because his family was falling apart and he needed to help put his family back together.  After all he went through, he now regrets taking his discharge.  He asks the Board to consider the early part of his service when he was still doing a good job.  Since his discharge he has held a job for 40 years.  He was the superintendent for a company.  He has a good family with one member retired from the military and another still serving.

3.  The applicant provides no additional 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.  On 8 September 1967, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 62E (Construction Machine Operator).  He was subsequently awarded MOS's 62J (General Construction Machine Operator), 62L (Wheeled Tractor Operator), and 12A (Pioneer).

3.  On 19 January 1968, the applicant departed Fort Leonard Wood, Missouri, for duty in the Republic of Vietnam (RVN).

	a.  On 12 February 1968, he was assigned for duty as a general construction machine operator with the 15th Engineer Company (Light Equipment).

	b.  On 30 January 1969, he departed the RVN for duty at White Sands Missile Range, New Mexico.

4.  On 12 June 1969, the applicant was promoted to the rank of specialist five/
pay grade E-5.

5.  Records show the applicant was absent without leave (AWOL) during the following periods:

* 8 July to 4 August 1969
* 2 to 15 September 1969
* 12 June 1970 to 25 August 1974

6.  On or about 26 August 1974, the applicant was apprehended and returned to military control.

7.  On 10 September 1974, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of Article 85 for desertion during the period on or about 12 June 1970 until on or about 26 August 1974.

8.  On 17 September 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions (UOTHC), and the procedures and rights available to him.

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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.  He acknowledged he had been advised of and understood his rights under the UCMJ and that he could receive a discharge UOTHC which would deprive him of many or all of his benefits as a veteran.  He acknowledged that he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC.

10.  The applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  On 30 September 1974, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 3 October 1974, the applicant was discharged accordingly.  He completed 2 years, 7 months, and 29 days of creditable active duty service and accrued 730 days of lost time.

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

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 85, for desertion terminated by apprehension is a dishonorable discharge and confinement for 3 years.

14.  Army Regulation 635-200 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	b.  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 that his undesirable discharge should be upgraded to general under honorable conditions because his absence was due to family circumstances.  He also contends that his early years of good service and his subsequent 40 years of good work should mitigate his misconduct.

2.  The evidence of record clearly shows the applicant had completed a 
12-month tour of duty in the RVN and had attained the rank of specialist five prior to any documented record of misconduct.  However, his quality of service was greatly diminished by his 730 days in desertion which were only terminated by his apprehension.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would jeopardize his rights.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct for Army personnel.  His extensive period of lost time rendered his service unsatisfactory.  He has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20120021599



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ABCMR Record of Proceedings (cont)                                         AR20120021599



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