IN THE CASE OF:	  

		BOARD DATE:	    27 August 2013

		DOCKET NUMBER:  AR20130001814 


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 a more favorable discharge.

2.  The applicant states that he served two tours in Vietnam and had an honorable discharge during his first enlistment.  He had a 15-month break in service between enlistments and did not receive a bonus.  When he returned from Vietnam, his wife refused to move to Fort Hood, Texas.  He also states that he lost his mother on the way to Vietnam and he was a mental wreck.  Additionally, he was a young man when this happened and he had every intention of making a career out of the service.

3.  The applicant provides no additional documents with his application.

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 7 December 1966 for a period of 3 years and training as a field wireman.  He completed his basic training at Fort Gordon, Georgia, and his advanced individual training at Fort Jackson, South Carolina, before being transferred to Vietnam on 4 May 1967 for assignment to Headquarters and Headquarters Battery, 2nd Battalion, 94th Artillery Regiment as a field wireman.

3.  On 17 October 1967, he was assigned the duties of a cook and was awarded the military occupational specialty 94B (Cook).  He was promoted to the pay grade of E-5 on 1 March 1968.

4.  He departed Vietnam on 30 April 1968 for assignment to Fort Jackson, where he served as a first cook until he was honorably released from active duty (REFRAD) on 12 December 1969.  He had served 2 years, 11 months, and       28 days of active service and had 8 days of lost time due to being absent without leave (AWOL).  He was single at the time of his REFRAD.

5.  On 13 July 1971, he again enlisted in the Regular Army in the pay grade of   E-5 for a period of 3 years, with a waiver of lost time.  He was married at the time of his enlistment and was transferred to Vietnam on 28 July 1971 for assignment to Headquarters and Headquarters Company, 2nd Battalion, 8th Cavalry Regiment for duty as a first cook.

6.  He departed Vietnam on 5 April 1972 for assignment to Fort Hood, Texas, as a first cook.  On 4 October 1972, he went AWOL and remained absent until          24 October 1972.

7.  On 13 November 1972, he again went AWOL and remained absent in desertion until he was returned to military control at Fort Gordon on 31 May 1973 where charges were preferred against him for being AWOL during the periods of 19721004 – 19721024 and 19721113 – 19730531.

8.  On 8 June 1973, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In his request, 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 acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf whereas he stated that he did not like the Army and wanted out so he could go back to his job.  He also stated he understood he would receive an undesirable discharge and he was satisfied with that.

9.  The applicant again went AWOL on 5 July 1973.

10.  The appropriate authority (a major general) approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

11.  Accordingly, on 19 July 1973, he was discharged in absentia under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with the issuance of an undesirable discharge.  He completed 1 year, 4 months, and 13 days of active service during his current enlistment and a total of 5 years,     11 months, and 18 days of total active service.  He had 234 days of lost time due to AWOL during his current enlistment.

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

13.  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 indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

	a.  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.

	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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial 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 or mitigating circumstances 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.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the repeated and extensive length of his absences and his rank.  His service simply did not rise to the level of a general discharge or an honorable 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 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)                                         AR20130001814





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ABCMR Record of Proceedings (cont)                                         AR20130001814



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