BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100025368 


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 under other than honorable conditions be upgraded to a general under honorable conditions discharge.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show:

* he had less than 345 days of lost time
* he held the rank/pay grade of private (PV2)/E-2 at the time of separation
* he had 3 years of creditable active duty service
* award of the Army Good Conduct Medal

2.  He states, in effect, that following his departure from the Republic of Vietnam (RVN) he was stationed at Fort Dix, NJ.  He attests he requested mental therapy to help him cope with his memories of his service in Vietnam, but it was denied by his captain.  Due to bad judgment, he decided to depart his unit in an absent without leave (AWOL) status and was subsequently apprehended.  He contends that General Abrams [the Army Chief of Staff at the time] and New York Congressman Biaggi spoke on his behalf and got him released from the stockade and discharged from the Army.  He further contends he was informed he would receive a general discharge in the rank/pay grade of PV2/E-2.  He concludes by stating he is currently suffering from failing health and disabilities and was advised that in order to receive medical benefits from the Department of Veterans Affairs (VA), he would need to apply for correction of his military records.



3.  He provides:

* National Archives (NA) Form 13046 (Response to Request for Separation Documents/Information)
* NA Form 13107 (Request for Discharge Review)
* a blank DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. code, Section 1552)
* a self-authored statement
* his DD Form 214

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.  His record shows he enlisted in the Regular Army on 14 September 1970 and upon completion of initial entry training he was awarded military occupational specialty 95B (Military Policeman).  The highest rank/pay grade he attained while serving on active duty was specialist four (SP4)/E-4.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.  He served in the RVN from 4 March 1971 through 24 January 1972 and was assigned to the 412th Military Police Company located at Fort Dix, NJ on 22 May 1972.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for departing his unit in an AWOL status.

4.  His record contains a Bar to Reenlistment packet that was initiated by his company commander on 7 November 1972 and approved on 21 November 1972.  This packet shows he was counseled by his leaders concerning his poor 

attitude and performance of duty which was below standards requisite to retention in the U.S. Army on seven separate occasions.  This packet also contains a written statement wherein the applicant admitted to going AWOL from his unit on four occasions which ultimately resulted in him being dropped from the rolls by the Army for desertion.  He concluded by stating "I want an Unsuitable Discharge for the convenience of the government."  He authenticated this document with his signature.  He indicated he was AWOL during the following periods (for a combined total of 133 days):

* 29 May through 5 June 1972, a period of 8 days
* 16 June through 26 June 1972, a period of 11 days
* 2 July through 6 July 1972, a period of 5 days
* 13 July through 29 October 1972, a period of 109 days

5.  His record contains a DD Form 458 (Charge Sheet) which shows he was charged with one specification of violating Article 86 of the UCMJ by absenting himself from his unit from 18 January 1973 through 15 August 1973, a period of 210 days.

6.  His record contains a memorandum rendered by his company commander on 23 August 1973, Subject:  History of AWOLs [applicant's name, PV2, applicant's social security number].  The commander stated the applicant was confined at the Fort Dix Correctional Facility on 17 August 1973 and recommended he appear before a court-martial empowered to render a Bad Conduct Discharge.  The commander indicated the applicant's periods of AWOL were as follows (for a combined total of 134 days).

* 29 May through 5 June 1972, a period of 8 days
* 16 June through 26 June 1972, a period of 11 days
* 2 July through 6 July 1972, a period of 5 days
* 12 July through 29 October 1972, a period of 110 days

7.  On 28 August 1973, he 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, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of 

a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  His record contains a Standard Form (SF) 88 (Report of Medical Examination) and an SF 89 (Report of Medical History) which show he underwent a preseparation medical examination on 30 August 1973.  These documents show he was not diagnosed with any illnesses, defects, or conditions at the time and he was medically qualified for separation.

9.  His chain of command recommended approval of his request for discharge for the good of the service and recommended that he be issued an undesirable discharge.

10.  On 8 September 1973, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade (PV1/E-1) and issued a DD Form 258A (Undesirable Discharge Certificate).

11.  Item 33 (Appointments and Reductions) of his DA Form 20 (Enlisted Qualification Record) shows he was reduced to the rank/pay grade of PV1/E-1, effective 8 September 1973.  Item 38 (Record of Assignments) of this form shows he received "unsatisfactory" conduct and efficiency ratings on three occasions.

12.  On 13 September 1973, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued a DD Form 258A.  His service was characterized as "Under Other than Honorable Conditions."  His DD Form 214 shows:

* Item 5a (Grade, Rate or Rank) - PV1
* Item 5b (Pay Grade) - E-1
* Item 6 (Date of Rank) - 8 September 1973
* Item 11d (Effective Date [of separation]) - 13 September 1973
* Item 17c (Date of Entry) - 14 September 1970
* Item 22a(1) (Creditable for Basic Pay Purposes - Net Service This Period) - 2 years and 21 days
* Item 22b (Total Active Service) - 2 years and 21 days
* 
Item 26a (Non-Pay Periods Time Lost)

 * 29 May through 5 June 1972 [a period of 8 days]
 * 16 June through 26 June 1972 [a period of 11 days]
 * 2 July through 6 July 1972 [a period of 5 days]
 * 12 July through 29 October 1972 [a period of 110 days]
 * 18 January through 15 August 1973 [a period of 210 days]

* Item 18 (Remarks) 345 days lost under Title 10, U.S. Code, section 972

13.  He provided an NA Form 13046, dated 27 September 1999, which shows the National Archives and Records Administration (NARA) provided him a copy of his separation document in response to his request.  On 4 October 1999, he sent a letter to NARA disputing the entries on his DD Form 214, which are now the subject of this ABCMR case, and provided the same argument for correction.
In response to his letter, NARA sent him an NA Form 13107, dated 5 November 1999, informing him that his requested actions were not within their purview and referred him to the Army Discharge Review Board (ADRB) and provided him a blank DD Form 149 to assist with his submission of a request for correction.

14.  His record is void of any evidence and he has not provided any evidence showing that he was diagnosed with a psychological or psychiatric condition, was denied psychological or psychiatric counseling, or that he experienced any other traumatic event while serving in the Army.

15.  There is no indication he applied to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  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 at any time after the charges have been preferred.

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.

18.  Army Regulation 672-5-1 (Awards), in effect at the time, stated the Army Good Conduct Medal was awarded for each 3 years of continuous enlisted active Federal military service completed on or after 27 August 1940; for first award only, 1 year served entirely during the period 7 December 1941 to 2 March 1946; and, for the first award only, upon termination of service on or after 27 June 1950 of less than 3 years but more than 1 year.  The enlisted person must have had all "excellent" conduct and efficiency ratings.  There must have been no convictions by a court-martial.  However, there was no right or entitlement to the medal until the immediate commander made a positive recommendation for its award and until the awarding authority announced the award in general orders.

19.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It also established the standardized policy for preparing and distributing the DD Form 214.  In pertinent part, it stated the DD Form 214 is a synopsis of the Soldier's most recent period of continuous active duty.  It provides a brief, clear-cut record of active Army service at the time of release from active duty, retirement or discharge.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.
The regulation provided:

	a.  the Soldier's separation date would be entered in item 11d;

	b.  the Soldier's date of entry on active duty would be entered in item 17c; 

	c.  the total service completed between the dates shown in items 17c and 11d would be computed by subtracting item 17c from 11d less lost time, if any, and entered in item 22a(1);

	d.  all prior service excluding service entered in item 22a(1), if any, would be entered in item 22a(2);

	e.  total active service the individual had completed beginning with the earliest period of active service up to and including the current period of active duty, less any time lost under Title 10, U.S. Code, section 972 would be entered in item 22b;

	f.  inclusive dates of non-pay periods/time lost during the previous 2 years would be entered in item 26a; and

	g.  if the individual lost any time prior to the normal expiration of their term of service the total number of days lost would be entered in item 30.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge under other than honorable conditions should be upgraded to a general under honorable conditions discharge and that his DD Form 214 should be corrected to show:

* he had less than 345 days of lost time
* he held the rank/pay grade of private (PV2)/E-2 at the time of separation
* he had 3 years of creditable active duty service
* award of the Army Good Conduct Medal

2.  His record is void of any evidence and he has not provided any evidence showing that he was diagnosed with a psychological or psychiatric condition, was denied psychological or psychiatric counseling, or that he experienced any other traumatic event while serving in the Army.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on three occasions for departing his unit in an AWOL status.

4.  His record shows he was barred from reenlistment for his frequent absences, poor attitude, and performance of duty which was below standards requisite to retention in the U.S. Army.

5.  His record also 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 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

6.  The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.

7.  Based on his record of indiscipline, he is not entitled to an upgrade of his discharge.

8.  In addition to his record of indiscipline, evidence shows he received "unsatisfactory" conduct and efficiency ratings on three occasions.  Therefore, he is not entitled to the Army Good Conduct Medal.

9.  Evidence clearly shows he was reduced to the rank/pay grade of PV1/E-1 on 8 September 1973.  His record is void of any evidence and he has not provided any evidence showing he was subsequently promoted to PV2/E-2 prior to his discharge.  Therefore, it would be inappropriate to amend his DD Form 214 to show he held the rank/pay grade of PV2/E-2 at the time of his separation.

10.  Evidence shows he was AWOL for a combined total of 344 days and item 18 of his DD Form 214 erroneously shows he had 345 days of lost time due to AWOL.  Therefore, he is entitled to correction of his DD Form 214 to properly show he only had 344 days of time lost and to have one additional day added to his creditable active service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ____X___  GRANT PARTIAL 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending his DD Form 214 as follows:

* deleting the current entries in items 22a(1) and 22b and replacing them with "2  0  22"
* deleting the entry "345 days lost under Title 10, U.S. Code, section 972" from item 30 and replacing it with "344 days lost under Title 10, U.S. Code, section 972"

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends 

denial of so much of the application that pertains to upgrading his undesirable discharge under other than honorable conditions to a general under honorable conditions discharge, award of the Army Good Conduct Medal, and showing his grade as PV2/E-2.



      ____________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)                                         AR20100025368





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ABCMR Record of Proceedings (cont)                                         AR20100025368



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