IN THE CASE OF:	  

		BOARD DATE:	  22 May 2014

		DOCKET NUMBER:  AR20130016808 


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 an honorable discharge.

2.  He states he was under a lot of stress due to family problems and being in Vietnam.  He was trying to save his marriage and he had more problems than the Army would help him with.  He is older and wiser, and he needs help with his life.  He states he had good service during his first enlistment.

3.  He provides two 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.  On 26 August 1969, the applicant enlisted in the Regular Army.  On 4 February 1971, he was honorably discharged to immediately reenlist.  On 5 February 1971, he reenlisted.  

3.  On 3 June 1971, his company commander imposed nonjudicial punishment (NJP) against him under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the prescribed time to his appointed place of duty.

4.  Item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record) shows he was assigned to units in Vietnam from 12 April 1972 until he went absent without leave (AWOL) on 1 August 1972.

5.  A DD Form 458 (Charge Sheet), dated 13 June 1973, shows he was charged with being AWOL from 1 August 1972 to 5 June 1973.

6.  On 16 June 1973, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, of the effects of requesting discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), and of the rights available to him.  

7.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 
635-200.

	a.  He acknowledged that:

* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  He indicated he would submit a statement in his own behalf.




8.  In the statement he submitted with his request for discharge, he confirmed that he understood if his request for discharge was approved he would likely receive an undesirable discharge, lose his VA and Army benefits, and have problems getting a job in civilian life.  He listed the following as reasons he wanted to be discharge:

* the Army could not pay him enough to take care of his monthly bills
* he was having personal problems with his wife
* his wife was expecting, she was dependent on him, and no one was working because of his confinement in the stockade
* he and his wife were on the verge of divorce because of his confinement, which would mean losing everything he had worked for since he went AWOL
* there was no support of any kind coming into his household and his wife and personal property meant more to him than anything else

9.  On 27 June 1973, the separation authority approved the applicant's request and directed that he receive an undesirable discharge.  On 2 July 1973, he was discharged in accordance with the separation authority's decision with his service characterized as under conditions other than honorable.  He completed 1 year, 
6 months, and 24 days of net service this period with 308 days of lost time.

10.  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.

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

	a.  Chapter 1 of the version in effect at the time stated the type and character of separation issued upon administrative separation from current enlistment or period of service would be determined solely by the member's military record during that enlistment or period of service, plus any extensions thereof prescribed by law or by the Secretary of the Army, or accomplished with the consent of the member.

	b.  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 to an individual who was discharged for the good of the Service. 

	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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL for more than 9 months, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.  His record shows he was well advised and fully aware of the consequences of his decision.

2.  Due to his lengthy period of AWOL, his conduct and performance during his second period of service were not satisfactory.  Although he served honorably during his first enlistment, the characterization of his service for his second enlistment was properly determined solely based on his military record during that enlistment.  

3.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service for the second period.  Therefore, there is an insufficient basis upon which to grant the requested relief.

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)                                         AR20130016808



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ABCMR Record of Proceedings (cont)                                         AR20130016808



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