IN THE CASE OF:	  

		BOARD DATE:	  4 January 2011

		DOCKET NUMBER:  AR20100016774 


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 of his discharge under other than honorable conditions.

2.  The applicant states he was young and confused at the time.  He enlisted at the age of 17 and he was sent to Vietnam.  He was a good Soldier who served his country proudly.  He delivered fuel to forward elements in Vietnam and performed maintenance on vehicles.  When he returned home, he and other Vietnam veterans were treated unfairly by the American public.  It was very hard for him to accept the negative treatment.  He has lived with his discharge for many years and as a veteran who loves his country, he requests an upgrade of his discharge.

3.  The applicant provides his DD Form 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.  The applicant's records show he was born on 12 July 1948 and enlisted in the Regular Army on 4 February 1966 at 17 years and 6 months of age.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant's records show he served in Vietnam from 6 August 1966 to 5 August 1967.  He was awarded the National Defense Service Medal, Vietnam Service Medal with one bronze service star, and Republic of Vietnam Campaign Medal with Device (1960).

4.  His records reveal a disciplinary history which includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* on 31 January 1968, for being absent without leave (AWOL) from 22 to 23 January 1968
* on 20 February 1968, for being AWOL from 17 to 18 February 1968 and failing to go at the time prescribed to his appointed place of duty
* on 4 April 1968, for failing to appear in formation
* on 14 May 1968, for disobeying a lawful order

5.  On 29 October 1968, he was convicted by a special court-martial of two specifications of being AWOL from 17 to 22 July 1968 and 31 July 1968 to 8 October 1968.  The court sentenced him to confinement at hard labor for 3 months and a forfeiture of $75.00 pay per month for 3 months.  The convening authority approved the sentence on 12 November 1968.

6.  On 15 August 1969, he was again convicted by a special court-martial of three specifications of being AWOL from 20 January 1969 to 14 June 1969, 18 June 1969 to 11 July 1969, and 13 to 18 July 1969.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $75.00 pay per month for 4 months.  The convening authority approved the sentence on 20 August 1969.

7.  On 19 January 1970, he departed his Fort Bliss, TX, unit in an AWOL status and he was subsequently dropped from the Army rolls as a deserter.  He returned to military control on 8 November 1971.

8.  On 18 November 1971, court-martial charges were preferred against him for one specifications of being AWOL from 19 January 1970 to 8 November 1971.

9.  On 18 November 1971, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

10.  In his request for discharge he indicated he was making the request of his own free will and had not been subjected to any coercion by anyone.  He also acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

11.  In connection with his request, he submitted a statement wherein he stated that 1 year after he returned from Vietnam, he was reduced in grade because he was late getting to work.  He thought it was unfair and went AWOL.  He then decided he wanted nothing more to do with the Army.  He had no desire to return to duty.

12.  On 22 and 23 November 1971, the applicant's immediate and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 1 December 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that be reduced to the lowest enlisted grade and that he receive an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 7  December 1971.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions. 
This form shows he completed 3 years, 1 month, and 20 days of creditable active service and he had 1,095 days of lost time.

14.  On 24 July 1985, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

15.  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, 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 to an individual who was discharged for the good of the service.

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 requests that his discharge be upgraded.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His narrative reason for discharge is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

3.  While it is acknowledged that he was 17 years of age at the time he enlisted, the evidence of record shows he was 19 years of age when he went AWOL the first time and was convicted by his first court-martial.  Nevertheless, there is no indication he was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  His service in Vietnam is noted; however, it is not sufficiently mitigating to change the character of his service.  Based on his overall record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

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)                                         AR20100016774



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ABCMR Record of Proceedings (cont)                                         AR20100016774



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