IN THE CASE OF:	  

		BOARD DATE:  10 September 2013

		DOCKET NUMBER:  AR20130012948 


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 undesirable discharge to a general discharge.

2.  The applicant states, in effect, he saw a lot death in Vietnam and was constantly involved in enemy action while serving as a bulldozer (Rome Plow) operator clearing jungle.  He was an only child and his family members wrote to their Congressional representative trying to get him out of Vietnam.  This caused his chain of command to be upset with him because of having to answer correspondence from the Congressional representative.  He reenlisted in order to get a 30-day leave and when he returned home he was told by his family that he was not going back.  He met with some other Soldiers who had not returned to Vietnam and they advised him to be absent without leave (AWOL) three times and he could be discharged for the good of the service.  He applied for a compassionate reassignment and a hardship discharge and both were disapproved so he started being AWOL.  He concludes by stating that he made a mistake and things might have been different if his family weren't so against him being in Vietnam.  He subsequently tried to reenlist and was denied.  He attends his unit's reunions and is proud of his service and his country. 

3.  The applicant provides a self-authored letter, a letter from a member of his unit in Vietnam, a letter from his spouse, a letter from a Selective Service System board member, and copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).



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 was an only child when he enlisted in the Regular Army on 1 October 1969 for a period of 3 years and training as an engineer heavy equipment operator.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training as a crawler tractor operator at Fort Leonard Wood, Missouri, before receiving orders to report to Oakland Army Base, California, on 10 March 1970 for reassignment to Vietnam. 

3.  The applicant did not report to Oakland Army Base until 12 March 1970.  Nonjudicial punishment was imposed against him for being AWOL for 2 days.

4.  He was reassigned to Vietnam on 16 March 1970 and was assigned to the 984th Engineer Company (Land Clearing).  He was advanced to pay grade E-3 on 28 April 1970.

5.  On 5 June 1970, he was honorably discharged for the purpose of immediate reenlistment.

6.  On 6 June 1970, he reenlisted for a period of 3 years and was granted a 
30-day reenlistment leave effective 20 June 1970.

7.  The applicant began a series of AWOL from 24 August to 23 September 1970 and from 26 September to 5 October 1970.  He was placed in confinement on 6 October and escaped from confinement on 15 October 1970.  He was again AWOL from 14 December 1970 to 12 January 1971 and was placed in confinement on 13 January 1971.

8.  The complete facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Columbia, South Carolina, on 6 November 1971.  However, his records do show he submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, on 18 January 1971.

9.  On 11 February 1971, the appropriate authority (a major general) approved his request and directed the issuance of an Undesirable Discharge Certificate.

10.  Accordingly, he was discharged under other than honorable conditions on  19 February 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He completed 1 year and 7 days of active service and had 182 days of lost time due to AWOL and confinement.  He completed 5 months and 8 days of service in Vietnam.

11.  On 13 May 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Department of Defense Special Discharge Review Program.  On 9 August 1977, the ADRB denied his request for an upgrade of his discharge.

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

	a.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge 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, the applicant voluntarily requested 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 and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated AWOL.

4.  Accordingly, there appears to be no basis for granting the applicant 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 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)                                         AR20130012948



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ABCMR Record of Proceedings (cont)                                         AR20130012948



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