IN THE CASE OF:	  

		BOARD DATE:  19 November 2013

		DOCKET NUMBER:  AR20130005994 


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 to honorable.

2.  The applicant states, in effect, he enjoyed the service and while stationed in Germany he reenlisted for assignment to Vietnam.  When he returned home from Germany his wife and child were living in deplorable conditions, his step-father was very sick, and his mother was having a rough time.  He applied for a hardship discharge to no avail and decided he must remain at home to help alleviate the situation.  He wished a million times that he had done differently.  He also states that 5 years after the fact he sought out a veteran's representative who told him he would apply for an upgrade; however, he never heard anything.  He has tried to be a good citizen and raise his children to respect God and country, he respects and admires service people, and he thanks God for them every day.

3.  The applicant provides a one-page letter explaining his application and five unsigned third-party support statements.

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.  On 28 November 1969, the applicant enlisted in the Regular Army with parental consent for a period of 3 years and training in the automotive career management field.  He completed his basic training at Fort Bragg, NC and his advanced individual training (AIT) as a wheel vehicle mechanic at Aberdeen Proving Ground, MD.  He was then transferred to Fort Knox, KY where he completed AIT as a track vehicle mechanic.

3.  He was transferred to Germany on 4 August 1970, and on 26 October 1970 he was honorably discharged for the purpose of immediate reenlistment.  He completed 10 months and 29 days of total active service during this period.

4.  On 27 October 1970, he reenlisted for a period of 3 years and assignment to Vietnam.  He departed Germany on 11 November 1970 for assignment to the Overseas Replacement Station at Fort Lewis, WA with a report date of
13 December 1970.

5.  He failed to report as ordered and he was reported as absent without leave (AWOL).  He remained in an AWOL status until he was returned to military control on 22 December 1970.

6.  He again went AWOL from 15 January to 19 July and from 3 August to
6 December 1971.  He was apprehended by civil authorities in Ohio and he was returned to military control at Fort Knox where charges were preferred against him for his absences.

7.  The specific facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Cleveland, Ohio in 1972.  However, his record contains a DD Form 214 for the period ending 26 January 1972 that shows he was discharged 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.  It further shows he completed 1 year, 2 months, and 


4 days of total active service this period with 359 days of time lost due to AWOL and confinement.

8.  There is no evidence the applicant raised any issues through his chain of command concerning a hardship discharge.  There is also no evidence the applicant applied for a hardship discharge during his active duty service.

9.  There is no evidence the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  The applicant provides five letters of support who attest to the applicant's integrity, dependability, and willingness to get the job done.  He has been a mentor and he would do anything for anybody.  He is efficient, positive, and a team player.

11.  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 VA 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.  In the absence of evidence to the contrary, it must be presumed that 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.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  The applicant's character as expressed by his support letters is commendable; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence and the fact that he was apprehended versus voluntarily surrendering to the appropriate authorities.

4.  His contention that he should have been given a hardship discharge was also considered; however, there is no evidence of record and the applicant did not provide any evidence that supports his contention he applied for a hardship discharge and it was denied.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130005994



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ABCMR Record of Proceedings (cont)                                         AR20130005994



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