IN THE CASE OF: BOARD DATE: 3 July 2012 DOCKET NUMBER: AR20110021787 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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD), under honorable conditions. 2. He states he completed an honorable combat tour in Vietnam. He contends he was young at the time, confused and heartbroken from his first relationship. These were the circumstances which led him to go absent without leave (AWOL). He never meant to do a disservice to his military obligations. He came from a life of poverty and joining the military was his only way out. 3. His period of AWOL was the only blemish in his record. However, since the time of his discharge, he has completed college and earned a degree in culinary arts and worked as a chef in Beverly Hills, CA and he has not been in any type of trouble. 4. He also attended the Optical America College and has worked as an optician for the last 25 years. He is married and has two children who are both very successful. He asks the Board to consider his situation at the time and grant him an upgrade of his UOTHC discharge. 5. The applicant provides two DD Forms 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. His military personnel record shows he enlisted in the Regular Army on 30 December 1968 at the age of 18 years. After completion of training, he served in military occupational specialty 11B (Light Weapons Infantryman). 3. His DA Form 20 (Enlisted Qualification Record) shows the following: * Item 31 (Foreign Service) – he served in Vietnam from 15 January through 24 December 1970 * Item 33 (Appointments and Reductions) – sergeant/E-5 was the highest rank/grade he attained while serving on active duty * Item 41 (Awards and Decorations) – does not include any valorous awards 4. On 9 June 1969, he received nonjudicial punishment (NJP) for disobeying a lawful order from a senior noncommissioned officer. 5. The applicant provided a DD Form 214 which shows he was honorably discharged on 30 April 1970 for the purpose of immediate reenlistment. 6. His record contains Special Court-Martial (SPCM) Order Number 2, dated 25 January 1972. This order shows he pled not guilty to the charge of going AWOL from 8 March to 1 December 1971. Contrary to his plea, he was found guilty of the charge and was sentenced to military confinement and reduction in grade. 7. SPCM Order Number 3, dated 1 February 1972, suspended the unexecuted portion of the sentence to confinement for a period of 3 months. 8. Item 44 (Time Lost under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) of his DA Form 20 shows he went AWOL again from 3 April to 23 May 1972. 9. His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 21 June 1972. This document shows he was arrested and confined by civil authorities on that same day. 10. A separation packet containing the specific facts and circumstances surrounding his separation processing is not contained in the available record. However, there is a separation order and a properly constituted DD Form 214 on file which identifies the authority and reason for his discharge. 11. Special Orders Number 142, issued by Headquarters, XVIII Airborne Corps and Fort Bragg on 21 July 1972, show he was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10 (For the Good of the Service). It was directed that he be issued a DD Form 258A (Undesirable Discharge Certificate). 12. Accordingly, he was discharged in the grade of private/E-1, on 21 July 1972, under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC characterization of service. He had completed a total of 2 years, 6 months, and 28 days active military service and had 353 days of lost time due to AWOL and confinement. 13. Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel. a. Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the 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. A discharge UOTHC was normally considered appropriate, but the separation authority may have directed a GD or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would have been improper. b. A GD was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. DISCUSSION AND CONCLUSIONS: 1. He contends he was young at the time and overcome by personal circumstances which caused him to go AWOL and his actions should be forgiven based on his honorable service in Vietnam. 2. The evidence of record shows he was 18 years old at the time of his enlistment and nearly 21 years of age during the period of his offenses. There is no evidence to show he was any less mature than other Soldiers his age who successfully completed their military service without any disciplinary infractions. 3. His entire record of service was reviewed and his post-service achievements and conduct were also taken into consideration. His record contains no documentary evidence of acts of valor or special recognition. It does show he was administered NJP for disobeying a lawful order and was court-martialed for going AWOL. Subsequent to his sentencing, he went AWOL once again for a period of 51 days. He was arrested by civil authorities and subsequently suspended from all favorable personnel actions by the Army. 4. His discharge packet is not available for review by the Board; therefore, there is a presumption of administrative regularity in the conduct of governmental affairs. This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption. 5. In connection with such a discharge, he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army, in lieu of trial by court-martial. In doing so, he would have admitted guilt to the stipulated offenses under the UCMJ. 6. It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The characterization of service for this type of discharge was normally a UOTHC and it is believed that the reason for discharge and the characterization of service were both proper and equitable. 7. In view of the foregoing, there is insufficient evidence to grant him 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) AR20110021787 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110021787 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1