IN THE CASE OF:

		BOARD DATE:  13 March 2014 

		DOCKET NUMBER:  AR20130013343 


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 that he was sent home on a compassionate leave from Vietnam.  He returned to Fort Jackson, South Carolina, while still on leave because he did not have the money to return to Vietnam.  He spoke with the Red
Cross and they said they could not help him.  He was placed in the "Nerve" Ward at the military hospital.  After he was released he just went home because he could not go back to Vietnam.  He was absent without leave (AWOL) and turned himself in.  He was young and hurt by his spouse and that affected his mental state.  He is now a model citizen, great father, and husband.  He requests an upgrade of his discharge due to his mental state at the time.

3.  The applicant provides copies of:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)
* DD Form 214 (Armed Forces of the United States Reports of Transfer or Discharge) 
* ten statements from his neighbors, friends, pastor and co-workers

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 4 November 1968.  He held military occupational specialty 36K (Field Wireman).  His date of birth is 
30 September 1951.

3.  On 18 May 1971, charges were preferred against the applicant for being AWOL from 10 November 1970 to 13 February 1971

4.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive an undesirable discharge, which would deprive him of many or all Army benefits, and he might be ineligible for veterans' benefits administered by the Veterans Administration (VA).  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  He indicated he would not submit a statement on his own behalf.

5.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an Undesirable Discharge Certificate.  The separation authority approved the recommendation on 2 June 1971 and directed issuance of an Undesirable Discharge Certificate.

6.  He was discharged on 9 June 1971.  His DD Form 214 shows his service was characterized as Under Conditions Other Than Honorable

7.  The Army Discharge Review Board denied his request for a change in the type and nature of his discharge.



8.  The applicant's service medical records are not available for review.

9.  There is no medical evidence showing he was admitted to a "Nerve" Ward or mental ward during his active duty service.

10.  The applicant provides ten statements from his neighbors, friends, pastor and co-workers.  The applicant is described as having excellent character, honest, a good worker, a good provider for his family, a Sunday School teacher, and church deacon.

11.  Army Regulation 635-200 provides 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 Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  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 contention that he was young and his mental state was affected because he was hurt by his spouse is not sufficiently mitigating to warrant relief.  The applicant was nearly 20 years old when separated and had satisfactorily completed training.  His satisfactory performance demonstrates his capacity to serve.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

3. His request for a chapter 10 discharge, even after appropriate and proper consultation with legal counsel, tends to show he wished to avoid the court-martial and the punitive discharge he might have received.  His service was appropriately characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade.

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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130013343



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