BOARD DATE:	  5 November 2013

		DOCKET NUMBER:  AR20130016927 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states he went absent without leave (AWOL) to seek medical treatment because he was told he was going to lose his leg.  He suffered from post-traumatic stress disorder (PTSD) and probably depression.  His family doctor saved his leg when the military said it could not be saved.  

3.  The applicant provides copies of his DD Form 214 (Report of and Separation from Active Duty) and Department of Veterans Affairs (VA) statements that he provided the VA in support of claims. 

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’s records, though somewhat incomplete, show that he enlisted in the Regular Army on 22 November 1967 for a period of 2 years.  He completed the training requirements and he was awarded an infantry military occupational specialty.  He was assigned to Vietnam on 10 May 1968. 

3.  On 23 September 1968, he was wounded and was awarded the Purple Heart at the 93rd Evacuation Hospital in Vietnam.  He was subsequently evacuated to Camp Zama, Japan and then to Fort Gordon, Georgia. 

4.  The applicant was subsequently assigned to an infantry company at Fort Rucker, Alabama and on 23 May 1969 he went AWOL and remained absent until 9 June 1969.  Again, on 26 August 1969, he went AWOL and remained absent in a desertion status until he was returned to military control at Fort Bragg on 
9 December 1975 where charges were preferred against him for his unauthorized absences.

5.  On 13 December 1975, after consulting with legal counsel, the applicant submitted a request for discharge 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.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  

6.  He also elected to submit a statement in his own behalf whereas he asserted that his military pay was screwed up, he had gotten married after returning from Vietnam, and he had a bad drinking problem.  He also stated that his grandmother raised him and she had passed away.  He further stated that he needed the discharge to keep from losing his job and went on to explain that he had started as a ditch digger and had risen to the position of superintendent.  However, he was in a bad car wreck and had to eventually get employment as a truck driver and he did not want to lose that job.

7.  The applicant was interviewed by his chain of command and he informed his commanders that he went AWOL due to financial problems because he had not been paid for 6 months while in the hospital.  He also stated that he could not adjust to Army life and desired to be discharged under chapter 10, Army Regulation 635-200.

8.  The appropriate authority approved his request on 26 January 1976 and directed that he be issued an Undesirable Discharge Certificate.

9.  On 5 February 1976, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 1 year, 
9 months, and 5 days of active service.  He also had 2,310 days of lost time due to being AWOL.  He was awarded the Purple Heart, Silver Star, Bronze Star Medal, Air Medal, Combat Infantryman Badge, and Army Commendation Medal.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  At the time, an Undesirable Discharge Certificate was normally issued.

	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.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so, he admitted guilt to the charges against him.

2.  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.

3.  The applicant's contentions have been noted; however, they are not supported by the evidence of record and are not sufficiently mitigating to warrant relief under the circumstances given the extensive length of his absence.  He made several statements at the time, and he never raised the issue he now contends was the reason for his AWOL.

4.  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)                                         AR20130016927



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ABCMR Record of Proceedings (cont)                                         AR20130016927



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