IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140018181 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he was injured in combat when he was caught in an explosion and it took about 4 years for him to heal.  He was 19 years old.

3.  The applicant does not provide any 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 enlisted in the Regular Army on 6 May 1969 at age 18.  He completed training and was awarded military occupational specialty 11B (Light 

Weapons Infantryman).  The highest rank he attained was private first class.

3.  His DA Form 20 (Enlisted Qualification Record) contains the following pertinent information:

     a.  Item 31 (Foreign Service) shows he served a tour of duty in the Republic of Vietnam (RVN) beginning on 28 February 1970.

     b.  Item 40 (Wounds) shows no entry.

4.  His DA Form 20B (Insert Sheet to DA Form 20 (Enlisted Qualification Record)) shows he was convicted by a special court-martial for being absent without leave (AWOL) from 22 November 1969 to 6 January 1970.

5.  A DD Form 458 (Charge Sheet), dated 4 December 1970, shows he was charged with being AWOL from his unit in Vietnam from 26 July 1970 through          1 December 1970.

6.  On 7 December 1970, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and the procedures and rights available to him.  Subsequent to receiving legal counsel, the applicant voluntarily requested 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.

7.  In his request for discharge, the applicant indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 11 December 1970, an authorized official approved his request and directed he receive an Undesirable Discharge Certificate.

9.  On 23 December 1970, the applicant was discharged accordingly.  He completed 11 months and 29 days of total active service with 229 days of time lost due to being AWOL.

10.  The Army Discharge Review Board denied his request for an upgrade of his of his discharge on 23 October 1972.

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

   a.  Chapter 10 of the version 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.  When warranted, commanders were to provide a statement indicating the member was mentally defective, deranged, or abnormal.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 an individual who was discharged for the good of the service.  

	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 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 contention that his record should be corrected by upgrading his UOTHC discharge was carefully considered and determined to lack merit.

2.  His contention that he was only 19 is noted; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  He contends that he was injured in combat when he was caught in an explosion; however, there is no evidence in the available records nor does he provide any to substantiate this claim. 

4.  He was charged with the commission of an offense 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.

5.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

6.  His lengthy periods of AWOL rendered his service unsatisfactory.  There is no documentary evidence of mitigating factors that would warrant changing the authorized official's determination that he would receive an under other than honorable conditions discharge.  Therefore, there is an insufficient basis upon which to grant the 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)                                         AR20140018181



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ABCMR Record of Proceedings (cont)                                         AR20140018181



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