IN THE CASE OF:	   

		BOARD DATE:	  6 August 2013

		DOCKET NUMBER:  AR20120022781 


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 discharge under other than honorable conditions.

2.  The applicant states he departed Vietnam on leave and went home.  When he tried to report back to his unit, he reported to Selfridge Air Force Base in Michigan and was told they had no record of him and that he was to leave the base.  The sergeant took his jacket in the middle of winter and put him off the base and said they would contact him when to return.  He states he was not contacted until he was picked up for being absent without leave (AWOL).  He served honorably in Vietnam and deserves the same benefits that others who served enjoy.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 30 March 1970 for a period of  3 years.  He completed basic training at Fort Knox, Kentucky, and advanced individual training as a heavy vehicle driver at Fort Polk, Louisiana.  He was transferred to Germany on 25 August 1970.

3.  On 7 December 1970, he was honorably discharged for the purpose of immediate reenlistment.

4.  On 8 December 1970, he reenlisted for a period of 3 years and assignment to Vietnam.  His records show he was AWOL from 5 February to 15 February 1971 and he was transferred to Vietnam on 28 February 1971.

5.  On 12 July 1971, he was AWOL again and remained absent in desertion until he was returned to military control at Fort Leonard Wood, Missouri, on 28 July 1974 and charges were preferred against him for being AWOL from 12 July 1971 to 28 July 1974.

6.  On 5 August 1974 after consulting with defense 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.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He  elected to submit a statement in his own behalf wherein he stated he did not want to be in the Army anymore and he was AWOL because he wanted to get out.

7.  His company commander stated that the applicant had demonstrated to his immediate supervisor that he was unwilling to adjust to military service and he should be discharged from the service given his statements, demeanor, and attitude.

8.  The appropriate authority (a brigadier general) approved his request on 13 August 1974 and directed his discharge under other than honorable conditions.

9.  He was discharged under other than honorable conditions on 20 August 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year, 3 months, and 24 days of total active service and had 638 days of lost time due to AWOL.

10.  On 12 September 1975, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general discharge.  On 27 May 1976, the ADRB denied his request for an upgrade of his discharge.

11.  On 28 April 1977, he again applied to the ADRB for an upgrade of his discharge and the ADRB denied his request for an upgrade of his discharge again on 10 January 1979.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of lesser-included offenses which authorize the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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's voluntary request for separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the short period of his service, the length of his absence, and his undistinguished record.  His service simply did not rise to the level of general under honorable conditions.

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)                                         AR20120022781



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ABCMR Record of Proceedings (cont)                                         AR20120022781



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