IN THE CASE OF:  	  

		BOARD DATE:  12 March 2015	  

		DOCKET NUMBER:  AR20140010708 


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 an honorable discharge by reason of permanent disability (medical discharge).

2.  The applicant states that he was sent home from the hospital and was told that he was being medically discharged but was misled by his leadership.  He was wounded in Vietnam and was subsequently released from the hospital and was told he was being medically discharged; however, he received orders transferring him to Fort Eustis, Virginia to work in the motor pool.  He injured his hand and his doctor told him that he was being medically discharged.  He informed his captain and was told to pack up his belongings and go home and the paperwork would catch up with him.  He worked the best he could to help his family and was picked up by the police and was transferred to Fort Benning, Georgia where he tried to explain his family’s hardships.  He was told it was too late for a medical discharge and he signed the paperwork he was provided.

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’s records, though somewhat incomplete, show that he enlisted in the Regular Army on 5 January 1970 for a period of 3 years and training as an engineer heavy equipment operator and maintainer.  He completed his basic training at Fort Polk, Louisiana and received orders transferring him to Fort Leonard Wood, Missouri for his advanced individual training (AIT).  However, he did not report as ordered and went absent without leave (AWOL) on 16 March 1970 and remained absent in desertion until 1 July 1970.  The record is silent as to the punishment imposed for that offense.

3.  The applicant completed his AIT and received orders transferring him to Vietnam.  He was transferred to Vietnam on 3 October 1970 and his records show he departed Vietnam on 12 November 1970 for assignment to Fort Eustis, Virginia.

4.  The applicant went AWOL from 1 July to 20 September 1971 and 3 October to 3 December 1971.  Charges were preferred against him on 9 December 1971. 

5.  On 15 December 1971, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  He elected to submit a statement in his own behalf in which he stated that he went AWOL from AIT for about 4 months because of financial problems and then turned himself in.  He states that he was court-martialed, completed his AIT, and was sent to Vietnam for about 3 ½ months when he was wounded and returned to the United States.  He was assigned to Fort Eustis and went AWOL because of financial and personal problems.  He also stated that he had nine brothers and sisters and his parents were elderly and his presence was needed at home to assist his parents in supporting his siblings.  He could not adjust to Army life and felt it best that he be discharged.
 
6.  On 18 January 1972, additional charges were preferred against the applicant at Fort Benning, Georgia for being AWOL from 13 January to 18 January 1972.

7.  The appropriate authority approved the applicant’s request for discharge on   8 February 1972 and directed that he be furnished an Undesirable Discharge Certificate.

8.  On 11 February 1972, he was discharged 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, 4 months, and 9 days of active service and had 268 days of lost time due to AWOL.

9.  A review of his official records as well as the Vietnam Casualty Listing failed to indicate that the applicant was wounded in Vietnam.  Additionally, there is no evidence to show that he attempted to notify his chain of command of any problems he may have had at the time.

10.  There is no indication 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 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 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.  The applicant’s voluntary request for discharge 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 with no indication of any violations of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  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.  

3.  The applicant's contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his repeated absences during such a short period of service. 

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)                                         AR20140010708





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ABCMR Record of Proceedings (cont)                                         AR20140010708



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