BOARD DATE: 23 June 2015 DOCKET NUMBER: AR20140017965 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 discharge under conditions other than honorable. 2. The applicant states: * he was not court-martialed, he resigned * he worked on the base after his discharge * he served four tours of duty in Vietnam 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States). 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. After a prior period of honorable enlisted service in the Regular Army, the applicant again enlisted in the Regular Army on 18 January 1965. He reenlisted on 18 August 1967. 3. Records show he was absent without leave (AWOL) on 9 December 1969 and he was dropped from the unit rolls on 8 January 1970. 4. On 27 March 1971, he was apprehended and placed in pre-trial confinement. 5. On 28 March 1971, charges were preferred against him for being AWOL on or about 9 December 1969 to on or about 28 March 1971. 6. His immediate commander issued a certificate wherein he stated the applicant's records indicated he had two previous summary courts-martial. He believed that further counseling or rehabilitation would be to no avail. He counseled the applicant on 28 March 1971 on the type of discharge and discharge certificate that could be furnished, and the possible consequences he may face after discharge. He recommended issuance of an Undesirable Discharge Certificate. 7. On 14 April 1971, the applicant was evaluated by the Mental Hygiene Consultation Service and he was psychiatrically cleared for administrative action as deemed appropriate by his command. 8. On 23 April 1971, he voluntarily requested discharge for the good of the service after consulting with counsel who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge; the effects of requesting discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10; and the rights available to him. 9. In his request for discharge, he acknowledged: * he understood he could be discharged under other than honorable conditions * he could be deprived of many or all Army benefits and he would be ineligible for many or all benefits administered by the Department of Veterans Affairs as a result of such a discharge * he could be deprived of his rights and benefits as a veteran under Federal and State laws * he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions 10. On 23 April 1971, the applicant provided a personal statement in which he indicated: * he acknowledged that by making a statement it did not mean he would receive a general or honorable discharge * in August 1968, his finance records were lost and he began having problems getting paid * the ensuing financial difficulties induced him to be AWOL * he had 7 years of prior honorable service with 2 years in Vietnam prior to his first AWOL offense * he was married and had four children to care for * he was always told "we will look into it" when he inquired about his pay * after hearing this too many times, he felt it was his duty as a father to take the means necessary to support his family 11. On 10 May 1971 following an Article 32 investigation, his immediate commander recommended his trial by general court-martial. His battalion commander recommended approval on 11 May 1971. 12. On 19 May 1971, his immediate commanders recommended approval of the applicant's request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. His brigade commander recommended the issuance of an Undesirable Discharge Certificate. 13. On 4 June 1971, the separation authority approved the applicant's request for discharge, directed the issuance of an Undesirable Discharge Certificate, and dismissed his pending court-martial charges effective the date of his separation. 14. On 14 June 1971, he was discharged under conditions other than honorable. His DD Form 214 for the period under review shows he completed 1 year, 6 months, and 3 days of net active service with 11 months and 29 days of service in Vietnam and 546 days of lost time. He completed 7 years and 29 days of total active service. He was issued an Undesirable Discharge Certificate. 15. On 7 May 1986, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. 16. The applicant provided a DD Form 293, dated 11 October 2014, wherein he requested, in effect, an upgrade of his discharge. He stated he was not court-martialed. He was given the choice of resigning, so he resigned. 17. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 3-7a states 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. b. 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. c. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. DISCUSSION AND CONCLUSIONS: 1. The applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice 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. After consulting with counsel and being advised of his rights, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 2. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service for this period. 3. His repeated periods of AWOL clearly diminished the overall quality of his service below that meriting an honorable or a general discharge. In view of the foregoing evidence of record, there is no basis for granting the applicant's request. 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 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) AR20140017965 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20140017965 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1