BOARD DATE:	  19 February 2015

		DOCKET NUMBER:  AR20140011619 


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 discharge, from an under other than honorable conditions discharge to a general, under honorable conditions discharge.  

2.  The applicant states:

	a.  He joined the Army to become a man and to make his mother proud of her only son.  His mother raised him and his sister alone because his father died when he was 6 years old.

	b.  While he was serving in Vietnam, his mother put his name and address in their local newspaper and a girl from his hometown started writing to him.  It really brightened his day when his name was called during mail call.

	c.  He returned home and he met the girl and they became close.  He then went to Germany.  He went home on leave after one year. 

	d.  The girl (now his girlfriend) was having family problems and she was looking for a way out.  One day, his girlfriend's mother told him "if you want her come and get her," so he did.  It was 10 August 1971, and since he was due in Germany on the 12th of August, he did not make it back to Germany.  He was then AWOL, married, and very confused.  

	e.  After awhile, he just wanted to have the military part of his life completed so he turned himself in.  He then applied for a hardship discharge because of the conditions at the time.  
	
	f.  He was young and dumb but he was trying to make things right.  He has been hanging his head in shame for 38 years and he has been living with the effects of what he did.  

	g.  He is very sorry for his actions and he asks for forgiveness.  He has been out of trouble for the past 38 years.  Before his life is over he would love to have his discharge upgraded to something he could be proud of and to show the world and himself that it is ok to make mistakes when you are young.  

3.  The applicant provides a DD Form 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.  The applicant was born on 28 December 1949.  He enlisted in the Regular Army on 12 February 1969 and he arrived in Vietnam on 7 July 1969.

3.  He accepted nonjudicial punishment (NJP) on:

* 16 September 1969, for failing to go at the time prescribed to his appointed place of duty
* 18 January 1970, for being absent from his place of duty without authority
* 30 June 1970, for leaving his place of duty without authority 

4.  He departed Vietnam on 3 July 1970.  

5.  On 28 December 1970, while stationed in Germany, he accepted NJP for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from his superior noncommissioned officer.  

6.  On 1 September 1971, he was reported by his unit as absent without leave (AWOL).  He remained AWOL until he surrendered to military authorities on      10 July 1972.

7.  On 12 July 1972, court-martial charges were preferred against him for the AWOL offense.

8.  On 21 July 1972, he consulted with legal counsel and voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  

9.  In doing so, he acknowledged that the charges preferred against him under the Uniform Code of Military Justice (UCMJ) authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:

* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

10.  He submitted a statement in his own behalf in which he stated that problems pertaining to his girlfriend as well as financial issues were the cause of his AWOL offense.

11.  On 25 August 1972, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an Undesirable Discharge Certificate.  On 12 September 1972, he was discharged accordingly.  His DD Form 214 shows he accrued 335 days of lost time and that his service was characterized as under other than honorable conditions.

12.  There is no evidence indicating he sought assistance through military channels for his family problems and/or his financial issues prior to going AWOL. 

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

14.  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 under the UCMJ, 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 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.

	b.  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 request for an upgrade of his under other than honorable conditions discharge was carefully considered.  

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial.  

3.  His voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline included NJP on four occasions and court-martial charges for a lengthy AWOL offense.  Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested to be discharged in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.  

5.  He contends that he was young at the time; however, age is not a mitigating factor for his misconduct.  He completed initial entry training, which shows he was mature enough to serve.  Additionally, he was almost 22 years old at the time he departed AWOL and there is no evidence that indicates he was any less mature than other Soldier of the same age who successfully completed their military service.

6.  His argument and his post-service conduct were noted; however, he has failed to show that his discharge processing and/or the characterization of service he received were in error or unjust.  As a result, there is no basis for granting his 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)                                         AR20140011619



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ABCMR Record of Proceedings (cont)                                         AR20140011619



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