IN THE CASE OF:	  

		BOARD DATE:	       14 October 2009

		DOCKET NUMBER:  AR20090008281 


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, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his sister was very ill at the time and he could not concentrate.  The applicant also states that he was being called a "baby killer" following his return from the Republic of Vietnam.  The applicant continues that he went to Vietnam because he was sent there and he does not think he deserved to be called what he was as soon as he disembarked the plane upon his return home.  The applicant concludes by stating that former President Nixon gave the Veterans who went absent without leave (AWOL) a pardon during the Vietnam Era.

3.  The applicant provides no documentary evidence in support of his application.

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 sub-stantive 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's record shows that he enlisted in the Regular Army and entered active duty on 16 October 1968.  Upon completion of advanced individual training he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The applicant completed a period of honorable service on 
12 November 1970 and immediately reenlisted on 13 November 1970.  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4; however, at the time of separation he held the rank of private (PVT)/pay grade E-1.

3.  Item 31 (Foreign Service) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he completed a tour of duty in the Republic of Vietnam during the period of 30 April 1969 through 6 April 1970.

4.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on seven occasions for the following offenses:  failing to report to his appointed place of duty at the prescribed time, violating a lawful regulation by operating a military vehicle without a driver's permit, violating a lawful regulation by speeding in a vehicle, and leaving his unit in an AWOL status.  The applicant received his first Article 15 on 10 March 1969 while stationed at Fort Dix, New Jersey.  He received five Article 15s during the period of 21 June 1969 to 26 January 1970 while stationed in the Republic of Vietnam.  He received his final Article 15 on 22 June 1971 while stationed at Fort Bragg, North Carolina.

5.  Headquarters, 55th Medical Group, Fort Bragg, North Carolina, Summary Court-Martial Order Number 6, dated 1 September 1971, shows the applicant appeared before a summary court-martial which assembled at Fort Bragg and was found guilty of:

	a.  violation of Article 86 of the UCMJ for absenting himself from his place of duty.

	b.  violation of Article 91 of the UCMJ for willfully disobeying a lawful order from a superior noncommissioned officer.

6.  A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 22 October 1971, shows the applicant departed his unit in an AWOL status on 8 October 1971 and was subsequently dropped from the unit's rolls on 12 October 1971.

7.  An extract from a DA Form 3545 and U. S. Army Personnel Control Facility, Fort George G. Meade, Maryland, Special Orders Number 29, dated 10 February 1972, show the applicant was apprehended by civil authorities and returned to military control on 6 February 1972.


8.  A 1AA Form 515 (Transmittal of Court-Martial Charges), dated 15 February 1972, shows the commander of the U. S. Army Personnel Control Facility, Fort George G. Meade, recommended that the applicant be tried by a Special Court-Martial.

9.  On 16 February 1972, the applicant consulted with legal 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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he understood if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  Headquarters, Fort George G. Meade, Special Orders Number 50, dated 13 March 1972, discharged the applicant under conditions other than honorable in accordance with the provisions of chapter 10 of Army Regulation 635-200, effective 15 March 1972.

11.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant confirms the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 and issued an undesirable discharge certificate.  He had 124 days of lost time due to being AWOL and in confinement.

12.  The applicant's record does not contain any evidence, and he has failed to provide any evidence that his sister was ill during the time of his service or that her illness had an adverse impact on his behavior.

13.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.
14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 was appropriate at the time the applicant was separated.

15.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

16.  Army Regulation 635-200, 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.

17.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered.

2.  The applicant began a pattern of misconduct during his initial entry training.  His record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on seven occasions for numerous offenses.  He received one Article 15 prior to his deployment to the Republic of Vietnam, five while he was there, and one following his return to the Continental United States.  Therefore, his contention that his adverse behavior was a result of the way he was treated by the public upon his return from the Republic of Vietnam is without merit.

3.  The applicant's record does not contain any evidence, and he has failed to provide any evidence that his sister was ill during the time of his service or that her illness had an adverse impact on his behavior.  Therefore, his contention that his concern for her state of health contributed to his misconduct is without merit.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10, Army Regulation
635-200 to avoid trial by court-martial.  In doing so he admitted guilt to the offenses charged.

5.  The available evidence also shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  The applicant's record is void of any evidence, and he has failed to provide any evidence that shows he requested a clemency discharge under the provisions of Presidential Proclamation 4313 and subsequently completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.

7.  Based on the applicant’s record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his undesirable discharge to either an honorable or general discharge.
8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090008281



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ABCMR Record of Proceedings (cont)                                         AR20090008281



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