BOARD DATE:	  9 July 2015

		DOCKET NUMBER:  AR20140020304 


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 more favorable discharge.

2.  The applicant states that he believes his undesirable discharge was overly harsh.  He freely admits that after his return from Vietnam he became disillusioned with the Army and sought to get out.  He went absent without leave (AWOL) for over a month and upon his return he was given several choices and took the easiest one, which was requesting a discharge from the General.  Being young and rash, he did not care about the repercussions that affect him even today.  He goes on to state that he was told then and continued to believe until recently, that there was no chance his discharge would be changed; however, after talking to veteran representatives he is requesting honest consideration of his request.

3.  The applicant provides copies of his military records.

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 in Dallas, Texas, on 30 July 1969 for a period of 2 years.  He completed his basic training at Fort Bliss, Texas, and his advanced individual training as a field artillery radar crewman at Fort Sill, Oklahoma, before being transferred to Fort Carson, Colorado, for his first assignment.

3.  On 25 May 1970, he was honorably discharged for the purpose of immediate reenlistment.  He had served 9 months and 26 days of active service.

4.  On 26 May 1970, he reenlisted for a period of 4 years and a Pacific long tour assignment.  He was transferred to Hawaii on 22 July 1970.

5.  On 24 January 1971, he was honorably discharged for the purpose of immediate reenlistment.  He had served 7 months and 29 days of his current enlistment for a total of 1 year, 5 months and 25 days of active service.

6.  On 25 January 1971, he reenlisted for a period of 6 years and assignment to Vietnam.  He was transferred to Vietnam on 19 May 1971, and on 1 December 1971, nonjudicial punishment was imposed against the applicant for being absent from his unit from 21 to 22 November 1971.  He served there until 9 March 1972 when he was transferred to Fort Riley, Kansas.

7.  The applicant went AWOL on 24 April 1972 and remained absent in desertion until he was apprehended by civil authorities in Texarkana, Texas, on 20 June 1972 and was returned to military control at Fort Smith, Arkansas.  He was subsequently transferred to Fort Sill where charges were preferred against him.

8.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veteran Affairs (VA) in Waco, Texas, on 10 October 1972.  However, his records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 3 August 1972, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 1 year, 4 months and 11 days of net active service during his current enlistment for 2 years, 10 months and 6 days of total active service with 
57 days of lost time due to AWOL.

9.  There is no evidence in the available records which shows that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  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.  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 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.  In the absence of evidence to the contrary, it must be presumed that 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.  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 a 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 and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, the fact that he was apprehended, and the lack of mitigating circumstances.  His service simply did not rise to the level of under honorable conditions.

4.  Accordingly, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20140020304





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140020304



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1