IN THE CASE OF:	  

		BOARD DATE:	  16 November 2010

		DOCKET NUMBER:  AR20100012381 


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 an upgrade to two discharges, dated 30 March 1973 and 15 April 1975.

2.  The applicant states, in effect, that his discharge dated 30 March 1973 was illegally administered with the professed reasoning being he was absent without leave (AWOL) for a total of 4 days.  He states his absences occurred after he returned from serving in the Republic of Vietnam when he left his post to travel home, a distance of 150 miles, to visit his family on two separate weekends.  He states he was not authorized the traditional 30-day leave after returning from overseas so he would take advantage of his free time on the weekend to travel home.  Upon his return from visiting his family, he was arrested, charged with desertion, and reduced in grade.  His commander offered him an undesirable discharge and implied his discharge would be automatically upgraded after 6 months.  He contends that 4 days of AWOL is not desertion and didn't warrant an undesirable discharge. 

3.  He states his second discharge, dated 15 April 1975, should also be upgraded.  He states the facts on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) are accurate but do not reflect his emotional state at the time of this discharge.  He states, in effect, that he felt betrayed when he was illegally charged with desertion and then discharged.  He states he was young and immature with limited life experiences.  With the general public influenced by the negative stigma of returning Vietnam Veterans, he states a decision was made by senior leaders to discharge Soldiers under less than honorable conditions.   He believes, in effect, that if he had not been improperly discharged in 1973, this discharge would not exist. 

4.  The applicant provides the following documentary evidence in support of his application:

	a.  DD Form 214, with a separation date of 24 October 1972;

	b.  DD Form 214, with a separation date of 30 March 1973;

	c.  DD Form 214, with a separation date of 15 April 1975;

	d.  DA Form 20 (Enlisted Qualification Record), signed and dated on 8 October 1975; and

	e.  a letter from the National Personnel Records Center, dated 15 March 2010, identifying his authorized military awards and decorations.

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 was born on 15 March 1954.  He enlisted in the Regular Army for a 3-year period of service on 6 August 1971 when he was 17 years, 4 months, and 23 days old.  His parents both signed a DD Form 373 (Consent, Declaration of Parent or Legal Guardian) on 20 July 1971 consenting to allowing their minor son to enlist in a component of the Armed Forces.  He completed basic combat and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  He arrived in Vietnam on or about 7 May 1972.

3.  On 24 October 1972, he was honorably discharged from the Regular Army for the purpose of immediate reenlistment.  He had served for 1 year, 2 months and 19 days of net active service for this period with 5 months and 18 days of foreign service serving in the Republic of Vietnam.  The highest rank he attained was specialist four (SP4)/pay grade E-4.  

4.  On 25 October 1972, he reenlisted and continued to serve in the Republic of Vietnam.

5.  On five separate dates from 10 November 1971 to 12 March 1973, the applicant accepted punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL on three separate occasions including from 4 November to 9 November 1971, from 10 February to 13 February 1973 and from 20 February to 21 February 1973.  Additional punishments were for failure to go to his appointed place of duty on four separate occasions. 

6.  The applicant was convicted during a summary court-martial of being AWOL for two periods from 10 February 1973 to 13 February 1973 (Saturday through Tuesday) and from 20 February to 21 February 1973 (Tuesday to Wednesday).  The sentence was adjudged on 5 March 1973.  His sentence was reduction to the pay grade E-3, forfeiture of $150.00 pay for one month, and hard labor without confinement for 20 days.

7.  The applicant was medically evaluated and found medically fit for retention or separation with no noted medical defects or diagnoses.  On 23 February 1973, the applicant was found to be mentally qualified for administrative separation.  The mental evaluation report shows the applicant had no significant mental illness, he was mentally responsible, he could distinguish right from wrong, he was able to adhere to the right, and he had the mental capacity to understand and participate in separation proceedings.  

8.  On 8 March 1973, the applicant’s immediate commander notified him of his intent to initiate separation action against him in accordance with Army Regulation 635-200 (Personnel Separations) for unfitness to include multiple violations of the Uniform Code of Military Justice, specifically, failure to be at his appointed place of duty and failure to follow instructions.  

9.  On 9 March 1973, the applicant acknowledged receipt of the commander's separation notification and subsequently consulted with legal counsel.  He was advised of the basis for the contemplated separation action for unfitness.  He was also advised of the type of discharge he could receive and its effect on further enlistment or reenlistment, and of the procedures/rights that were available to him.  The applicant stated that he was not submitting statements in his own behalf and he waived representation by counsel.  The applicant acknowledged that as the result of issuance of a discharge under conditions other than honorable he may be ineligible for many or all benefits as a veteran under both Federal and State laws and that he may expect to encounter substantial prejudice in civilian life.

10.  On 12 March 1973, his counsel acknowledged he had counseled him.  In his statement, counsel states the applicant wanted out of the Army and that he was willing to accept an undesirable discharge.  Additionally, counsel reported the applicant stated further rehabilitative efforts by the Army would not succeed and if he were not discharged, he would desert.   

11.  On 13 March 1973, the applicant’s commander recommended that the applicant be separated under the provisions of Army Regulation 635-200 for unfitness.  The commander stated the applicant had shown habits and undesirable characteristics manifested by his four periods of AWOL totaling 14 days and conviction by a summary court-martial for 4 days of AWOL.  The commander additionally stated the applicant shirked his duties, disregarded military authority, and had not responded to rehabilitative efforts.  In his written narrative, the commander stated the applicant had received two conduct and efficiency ratings of "excellent" for the periods ending on 16 November 1971 and 25 July 1972, respectively.  

12.  On 26 March 1973, the separation authority approved the applicant’s discharge, under the provisions of Army Regulation 635-200, chapter 13 due to unfitness.  The separation authority directed the applicant be furnished an undesirable discharge and his service characterized as under other than honorable conditions.  

13.  Accordingly, the applicant was given an undesirable discharge on 30 March 1973.  He had completed a total of 5 months and 2 days of net active service for this period. 

14.  His service records show he again enlisted in the Regular Army on 31 January 1974 for a 3-year period of service.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he stated it was his first enlistment and that he had no prior active or inactive service.  He authenticated he had never been discharged from previous service under other than honorable conditions.  Additionally, he stated he had never been arrested, cited, or charged or held by Federal or civil law enforcement authorities for violation of Federal or civil laws.  

15.  On 25 February 1975, court-martial charges were preferred against the applicant for deliberately concealing the fact he had previously served on active duty as an enlisted member of the Armed Forces when he presented himself to the Armed Forces Examining and Entrance Station on or about 31 January 1974.  A second charge was for two periods of AWOL from 2 July to 13 July 1974 and from 19 July 1974 to 31 January 1975. 

16.  On 27 February 1975, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

17.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial on 11 March 1975 and directed issuance of an under other than honorable conditions discharge.

18.  The applicant was discharged accordingly on 15 April 1975.  The DD Form 214 issued at the time confirms he completed 7 months and 21 days of net active service for the period.  His service was characterized as under other than honorable conditions with 207 days of lost time under the provisions of Title 10, U.S. code, section 972 from 2 July 1974 to 12 July 1974 and again from      19 July 1974 to 30 January 1975.  

19.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharges within its 15-year statute of limitations.

20.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, paragraph 5a(1) in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit or unsuitable for further military service.  In pertinent part, it provided for the separation of individuals for frequent incidents of a discreditable nature with civil or military authorities, defective attitudes, and an inability to expend effort constructively.  When separation for unfitness was warranted, an undesirable discharge certificate was issued except that an honorable or general discharge may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.  

   b.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (dishonorable discharge or bad conduct discharge) is authorized for AWOL of 30 days or more.  The maximum punishment for AWOL includes confinement for 12 to 18 months and a forfeiture of all pay and allowances

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

	d.  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.  

	e.  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 contends that his first discharge in 1973 was illegally administered and improper.  He contends that if he had not been improperly discharged in 1973, his second discharge in 1975 would not exist.

2.  Based on the evidence of record, the applicant was convicted by a summary court-martial for being AWOL, a violation of the UCMJ.  He also accepted five Article 15s under the UCMJ for three periods of AWOL (including a 6-day period of AWOL before he went to Vietnam) and failure to go to his appointed place of duty on four separate dates.  His personal conduct rendered him unfit for continued military service under the provisions of Chapter 13 of Army Regulation 635-200.  The evidence of record confirms his separation processing for unfitness was accomplished in accordance with applicable regulations and his characterization of service and the reason for separation were appropriate considering all the known facts of this case.  He has failed to produce evidence to support his contention that he was illegally and improperly discharged in 1973.  Therefore, there is no basis to grant his request to upgrade his 1973 discharge. 

3.  With intent to deceive the Federal government, he entered into an enlistment contract for a third period of enlisted service in 1974.  He knowingly made false statements when he said he had never served in the Armed Forces and that he had never been discharged under other than honorable conditions.

4.  During this third enlistment period, he departed AWOL twice, from 2 July to 13 July 1974 and from 19 July 1974 to 31 January 1975.  He was apprehended and then charged with committing these offenses under the UCMJ to include making false official statements concerning his previous enlisted service.  As required by Army regulation, he met with counsel and was informed of his rights to include the option to request a discharge or go to trial.  He voluntarily elected a discharge under the provisions of Army Regulation 635-200, chapter 10.  This type discharge is a voluntary request for discharge in lieu of trial by court-martial.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

6.  After a review of the applicant's record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for warranting an upgrade of the applicant's under other than honorable conditions discharge of 15 April 1975.

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)                                         AR20100012381



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ABCMR Record of Proceedings (cont)                                         AR20100012381



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