BOARD DATE:	  5 August 2014

		DOCKET NUMBER:  AR20130021907 


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 under other than honorable conditions discharge be upgraded to honorable.  

2.  The applicant states:

	a.  His wife was diagnosed with ovarian cancer while he was stationed at Fort Leonard Wood, MO.

	b.  His wife was pregnant when she was diagnosed with ovarian cancer.  She gave birth in November 1972 and he had just come back from Vietnam in December 1971.

	c.  He had to handle the situation with his sick wife the best he could so he had to go absent without leave (AWOL) to try to help his wife.

	d.  His wife passed in June 1974.  The police then came and got him and returned him to the military.

	e.  He handled the situation the best way he knew.  He was dealing with the stress of coming back from Vietnam and he also had a newborn child.  

	f.  He went AWOL because his commander would not allow him to take leave.

3.  The applicant provides no additional evidence.

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 inducted into the Army on 19 June 1969.  He served in Vietnam. 

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 16 November 1969 to 30 October 1970.  

4.  His DA Form 20 also shows he was in an AWOL status during the periods
11-26 January 1971 and 16 February-13 April 1971.

5.  On 22 April 1971, court-martial charges were preferred against him for his AWOL offense from 16 February to 13 April 1971.

6.  He again departed AWOL on 26 April 1971 and remained AWOL until he was apprehended by civilian authorities on 30 June 1974.

7.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  His records do contain a properly-constituted DD Form 214 (Report of Separation from Active Duty) which identifies the authority and reason for his separation.

8.  His DD Form 214 shows he was discharged on 31 July 1974 in the rank/grade of private (PV1)/E-1 after completing 1 year, 8 months, and 27 days of creditable active service with 1,234 days of lost time.  It also shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with his service characterized as under other than honorable conditions and issuance of an Undesirable Discharge Certificate.

9.  There is no evidence in the applicant's available records indicating that family medical issues were the proximate cause of his AWOL offenses.

10.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

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

	a.  Chapter 10, 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, the type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs 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.

	b.  Paragraph 3-7a states 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 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 request for an upgrade of his under other than honorable conditions discharge has been carefully considered.

2.  He contends that medical issues with his wife were the reasons for his periods of AWOL; however, there is no evidence in his available military records, and he provided none, which substantiate his contention.  

3.  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 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.

4.  The applicant has failed to show that his discharge and/or the characterization of service he received were in error or unjust.  As a result, there is no basis for granting him 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)                                         AR20130021907



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ABCMR Record of Proceedings (cont)                                         AR20130021907



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