IN THE CASE OF:	  

		BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021892 


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 received an honorable discharge for his service in Vietnam from 1970 to 1971
* he reenlisted with the understanding he would serve a 2-year tour in Vietnam
* after only 1 year he was returned to the United States
* he requested numerous times to return to Vietnam, but he was refused
* as a young man whose mind was confused by the effects of the war he failed to report for duty
* he felt his agreement to serve in combat was violated; therefore, no longer valid
* he understands his actions were not mature, but he felt his motive to serve his country in combat was of the highest honor

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 4 May 1971 and 15 January 1973.


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 16 December 1950.  He was inducted into the Army of the United States on 7 April 1970.  He completed his training and he was awarded military occupational specialty 64B (heavy vehicle driver).  He arrived in Vietnam on 1 October 1970.  On 4 May 1971, he was honorably discharged for the purpose of enlistment in the Regular Army (RA).  He enlisted in the RA on
5 May 1971 for a period of 3 years.  He departed Vietnam on 30 September 1971.

3.  He went absent without leave (AWOL) on 20 January 1972 and he returned to military control on 21 November 1972.  On 22 November 1972, charges were preferred against him for the AWOL offense.

4.  On 1 December 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.  In summary, he stated:

* he was drafted into the service
* he reenlisted because he wanted to stay in Vietnam


* while in Vietnam he received three Army Commendation Medals and a citation
* he received two Article 15s for being AWOL (during his first enlistment)
* his family needs him at home
* he is in debt
* his daughter has asthma
* he cannot stay in the Army and do a good job
* his mind is at home with his family

5.  On 22 December 1972, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

6.  On 15 January 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial and furnished an Undesirable Discharge Certificate.  He completed 1 year, 9 months, and 29 days of total active service with 370 days of time lost.

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

8.  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 young man and his actions were not mature.  However, age is not a sufficiently mitigating factor.  He was age 19 when he was inducted into the Army and he 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 terms of service.  In addition, he completed almost 2 years of service prior to going AWOL.

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.  His record of service during his last enlistment included 370 days of time lost.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or general discharge for his last term of service.

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)                                         AR20120021892



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ABCMR Record of Proceedings (cont)                                         AR20120021892



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