IN THE CASE OF:	

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130004181 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). 

2.  The applicant states he was informed that his discharge would be upgraded to medical under honorable conditions due to his honorable service in Vietnam for 6 months.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) effective 22 February 1972.

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 18 November 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 55B (Ammunitions Storage Specialist).  

3.  The applicant's records show he served in the Republic of Vietnam (RVN) during the period 8 May 1969 through 16 May 1970.  He was honorably discharged on 20 November 1969 at the rank/grade of private first class/E-3 to immediately reenlist.

4.  The applicant's records show he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic Campaign Medal with 60 Device.

5.  Special Court-Martial Order Number 848, issued by Headquarters, U.S. Army Personnel Control Facility, United States Army Armor Center, Fort Knox, Kentucky, dated 18 August 1971, shows the applicant was found guilty of being absent without leave (AWOL) during the following periods:

* 1 August 1970 to 20 October 1970
* 26 October 1970 to 25 January 1971
* 6 February 1971 to 18 April 1971
* 7 May 1971 to 7 July 1971

6.  The resulting sentence was confinement at hard labor for 4 months and reduction to the rank and pay grade of Private (E-1).  

7.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS), of his DA Form 20 (Enlisted Qualification Record) shows additional periods of AWOL:

* 22 November 1971 to 27 December 1971
* 7 January 1972 to 19 January 1972

8.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, the record includes a DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service-in lieu of trial by court-martial on 22 February 1972 with a discharge UOTHC.  It further shows he completed a total of 1 year, 10 months, and 20 days of creditable active military service and accrued 501 days of lost time due to AWOL.

9.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  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.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.  At the time of the applicant’s discharge a UD was issued for members separating under this chapter. 

11.  Army Regulation 635-200, paragraph 3-7a, states 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.

12.  Army Regulation 635-200, paragraph 3-7b, states 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 request for upgrade of his UOTHC discharge to HD has been carefully considered.  However, there is insufficient evidence to support his claim.

2.  The applicant's record is void a separation packet containing the facts and circumstances that led to his voluntary discharge.  However, it does include a DD Form 214 that shows he was discharged on 22 February 1972 under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service-in lieu of court-martial.  His disciplinary record shows he was AWOL on six different occasions and accrued 501 days of lost time.

3.  Discharges under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service. 

4.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This conduct rendered his service unsatisfactory.  Therefore, there is no basis for upgrading the applicant’s 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 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)                                         AR20130004181



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ABCMR Record of Proceedings (cont)                                         AR20130004181



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