IN THE CASE OF:	  

		BOARD DATE:	  12 January 2011

		DOCKET NUMBER:  AR20100015131 


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 (UD) be upgraded.

2.  The applicant states he did not fully understand the consequences of receiving a UD.  He would not have accepted the discharge had he known.  He had a prior honorable discharge, he served in Vietnam during eight campaigns, and he was promoted to staff sergeant.

3.  The applicant provides two DD Forms 214 (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.  The applicant enlisted in the Regular Army (RA) on 3 September 1963 and he served until he was honorably separated for immediate reenlistment on 26 April 1965.  He was issued a DD Form 214.

3.  He reenlisted in the RA on 27 April 1965.  On 25 May 1965, the Federal Bureau of Investigation (FBI) reported to the Secretary of the Army that the applicant had been arrested on 3 May 1965 and 13 May 1965 in El Paso, Texas. No action was taken by the Army to follow up on this report until a request for investigation was made on 9 April 1970.  The dispositions of these arrests are not available.

4.  The applicant was promoted to staff sergeant (E-6) effective 20 February 1969 and reduced to sergeant/E-5, effective 6 March 1970.

5.  The applicant received nonjudicial punishment, under Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 4 November 1965, for being absent without leave (AWOL)
* 25 February 1966, for AWOL
* 5 February 1968, for missing movement 
* 3 April 1969, for violating curfew 
* 6 March 1970, for assault, wrongfully striking a foreign national, and being drunk and disorderly

6.  A summary court-martial convicted him for being AWOL 19 days and a special court-martial convicted him for being AWOL 136 days.

7.  While AWOL, the applicant was arrested by civilian authorities in Bloomington, Illinois and in November 1972, he was found guilty of unlawful use of a firearm.  He was sentenced to serve 90 days in confinement (to be served on weekends) and probation for 1 year.

8.  On 21 July 1973, court-martial charges were preferred against the applicant.  On 9 August 1973, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct discharge (BCD) or dishonorable discharge (DD).  He acknowledged he understood that if his request was accepted he could receive a discharge under other than honorable conditions and be furnished a UD Certificate.  He acknowledged that such a discharge would deprive him of many or all benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UD.  In a statement accompanying the request he implied that had he not been apprehended he was not contemplating returning to the Army and that he would most likely continue to go AWOL.

9.  The discharge authority approved the applicant's request for discharge and directed that the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.

10.  The applicant was discharged on 28 August 1973 under Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  His DD Form 214 shows he had completed a total of 6 years, 10 months, and 6 days of creditable service with 388 days of lost time prior to his normal expiration term of service (ETS).  He also had 807 days lost subsequent to his ETS.  

11.  The applicant's DD Form 214 incorrectly lists his last period of AWOL as 
7 - 18 July 1973.  His awards are shown as the Vietnam Service Medal with eight bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), and the Expert Marksmanship Qualification Badge with Rifle Bar.

12.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant's foreign service as: 

* Korea from 17 January 1964 through 1 February 1965
* Vietnam from 2 February 1967 through 31 May 1969
* Germany from 30 July 1969 through 30 July 1970
* Vietnam from 9 September 1970 through 12 June 1971 

13.  The DA Form 20 lists the applicant's periods of lost time as:

* 2 - 3 November 1965, 2 days AWOL
* 2 - 20 February 1966, 19 day AWOL
* 4 April - 17 August 1966, 136 days AWOL
* 18 August - 15 December 1966, 120 days in confinement
* 25 February 1971 - 29 June 1971, 125 days AWOL [the applicant was assigned to Vietnam during 108 days of this time]
* 7 July 1971 - 18 July 1973, 743 days AWOL 

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  The regulation in effect at the time provides the following:


	a.  Chapter 3, outlines the criteria for characterization of service.  

	b.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	c.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions.  The GD issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  

	d.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, a UD was appropriate at the time 

15.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ: 

	a.  The maximum punishment under Article 85, desertion, in a time of war is Death, a DD or BCD, confinement for life, and a total forfeiture of all pay and allowances.  A lesser included charge under this article is intent to avoid hazardous duty or shirking important service which carries a maximum punishment of a DD or BCD, confinement for 5 years, and a total forfeiture of all pay and allowances. 

	b.  The maximum punishment authorized for offenses under Article 86, for periods of AWOL in excess of 30 days that were terminated by apprehension, is a DD or BCD, confinement for 18 months, and a total forfeiture of all pay and allowances. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he did not fully understand the consequences of receiving a UD.  He had a prior honorable discharge, he served in Vietnam during eight campaigns, and he was promoted to staff sergeant.

2.  The applicant's misconduct commenced with two civilian arrests in May 1965, shortly after reenlistment.  He received five NJP's, two court-martial convictions, 

a November 1972 civilian conviction for the unlawful use of a firearm, and three lengthy periods of AWOL of 136 days, 125 days, and 743 days respectively. 

3.  The severity of the 25 February - 29 June 1971 AWOL offense is aggravated by the fact that the majority of it [108 of the 125 days] occurred while he was assigned to Vietnam.

4.  Likewise, his 7 July 1971 - 18 July 1973 AWOL offense must be considered more serious because it did not terminate until he was apprehended. 

5.  Had he not requested the chapter 10, he would have been tried by a court-martial and undoubtedly found guilty.  By requesting discharge under chapter 10 the applicant avoided not only a Federal conviction but potentially significant confinement and a punitive discharge. 

6.  The applicant's persistent misconduct out weighs his period of service in Vietnam, especially in light of the fact that 108 days of his AWOL offense occurred while he was avoiding duty in Vietnam.  

7.  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.

8.  Therefore, based on the above facts and findings, relief is not warranted. 

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)                                         AR20100015131



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ABCMR Record of Proceedings (cont)                                         AR20100015131



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