IN THE CASE OF:	  

		BOARD DATE:	  16 December 2014

		DOCKET NUMBER:  AR20140008170 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he has attached a statement explaining his application; however, no such statement was received with his application.  He also indicates that he has presumptive conditions from his service in Vietnam.

3.  The applicant provides no additional documents with his application.

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 enlisted in the Regular Army on 30 April 1970 for a period of     3 years.  He completed his basic training at Fort Dix, New Jersey and his advanced individual training as an equipment storage specialist at Fort Lee, Virginia and was assigned to the Atlanta Army Depot for his first assignment.

3.  On 9 May 1971, he was transferred to Vietnam for assignment to the U.S. Army Depot – Danang.  

4.  On 14 January 1972, he was honorably discharged for the purpose of immediate reenlistment.  He had served 1 year, 8 months, and 15 days of active service.

5.  On 15 January 1972, he reenlisted for a period of 4 years.  He departed Vietnam on 6 March 1972 for assignment to Fort Campbell, Kentucky.

6.  On 6 September 1972, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 1 September to 5 September 1972.

7.  On 9 October 1973, NJP was imposed against him for being AWOL from 
4 October to 5 October 1973.

8.  On 12 October 1973 he went AWOL and remained absent in desertion until he was returned to military control on 2 November 1973.  He again departed AWOL on 6 December 1973 and remained absent until he was returned to military control on 28 January 1974.

9.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Philadelphia, Pennsylvania on 22 November 1974.  However, his records do contain a duly-authenticated DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged under other than honorable conditions at Fort Campbell, Kentucky on 1 February 1974 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 10 months, and 12 days of active service during his current enlistment for a total of 3 years, 6 months, and 27 days of active service and had 67 days of lost time due to AWOL.

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.  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 indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  An undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

12.  Army Regulation 635-200, 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.

13.  Army Regulation 635-200, 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.  The applicant's record is void of the complete facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the UCMJ 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 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.

2.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absences, his overall record of service, and the absence of mitigating circumstances.  Additionally, discharges are not normally upgraded simply for the purpose of qualifying individuals for benefits.  As such, his service simply did not rise to the level of an honorable or a general discharge.
3.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140008170





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ABCMR Record of Proceedings (cont)                                         AR20140008170



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