IN THE CASE OF:	  

		BOARD DATE:  25 July 2013

		DOCKET NUMBER:  AR20130000775 


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 that his undesirable discharge be upgraded to general, under honorable conditions.  

2.  The applicant states he saw a lot of combat, laid his life on the line, and lost many friends.  His country called for him and he did his duty.  

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), Undesirable Discharge Certificate, and seven third-party letters of support.

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 1 July 1971.  He was awarded military occupational specialty 11B (Light Weapons Infantryman) upon completion of initial entry training.  

3.  His record shows he served in Vietnam from 7 March 1972 to 20 September 1972.  His record documents no acts of valor or significant achievement.  

4.  He accepted nonjudicial punishment of the following occasions:

	a.  on 24 January 1972 for being absent without leave (AWOL) from 
14 December 1971 to 11 January 1972;

	b.  on 1 April 1972 for falling asleep on his post while posted as a sentinel;  

	c.  on 18 May 1972 for failing to appear for guard duty; and 

	d.  14 August 1972 for sleeping while on guard duty.

5.  On 30 November 1972, court-martial charges were preferred against him for being AWOL during the period 5 - 28 November 1972.

6.  On 3 February 1973, additional court-martial charges were preferred against him for being AWOL during the period 30 November 1972 - 5 February 1973.

7.  He consulted with legal counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.  He indicated that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he would be deprived of many or all Army benefits, he might be deprived of 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 that he might expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.

8.  He submitted a statement in which he indicated the reason he wanted out of the service was that he was having personal and family problems which could not be taken care of while he was in the service.  He further indicated he had no desire and he did not care about his commitment to his country and that if his request was disapproved, he would be forced to go AWOL again until he could get the Army to see his point.
9.  On 4 April 1973, the appropriate authority approved his request and directed that he receive an Undesirable Discharge Certificate.  On 13 April 1973, he was discharged accordingly.  His DD Form 214 shows he completed 1 year, 5 months, and 17 days of active duty service and that he accrued 119 days of lost time.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  He provides seven third-party letters of support that attest to his positive post-service conduct and support the upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, 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.

13.  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 evidence of record confirms the applicant was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  It also shows that after consulting with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His voluntary request for discharge to avoid trial by court-martial under the provisions of chapter 10, Army Regulation 635-200, was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

2.  His record of indiscipline includes nonjudicial punishment on four occasions, two separate court-martial charges for AWOL, and 119 days of lost time.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service does not support an upgrade of his discharge to general, under honorable conditions.

3.  The third-party letters of support were also considered; however, these documents failed to show that his discharge and character of service received were in error or unjust.  

4.  Based on the foregoing, there is no basis to grant the requested relief.  

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)                                         AR20130000775



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ABCMR Record of Proceedings (cont)                                         AR20130000775



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