BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100026725 


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 upgrade of his under other than honorable conditions discharge.

2.  He states he was discharged under other than honorable conditions because he was listed as a deserter.  He did not desert, he was sent home by his troop commander to await orders because his DA Form 201 (Military Personnel Records Jacket (MPRJ)) was not at the command.  His new unit was leaving for Vietnam and they had no orders for him to go with them.

3.  He provides:

* his DD Form 214 (Report of Separation from Active Duty)
* a DD Form 215 (Correction to DD Form 214)
* a self-authored statement
* special court-martial orders suspending and remitting a court-martial sentence

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 for a period of 3 years on 26 September 1966.

3.  His record shows that while assigned to duty in Vietnam with the 446th Transportation Company (Medium Truck), he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on four occasions:

* on 14 July 1967, for having knowledge of a lawful order not to exceed the posted speed limit and exceeding the posted speed limit
* on 2 and 21 September and 9 December 1967, for failing to go at the time prescribed to his appointed place of duty

4.  His record includes three special court-martial orders issued by Headquarters, 7th Transportation Battalion (Truck).

	a.  Special Court-Martial Order Number 1, dated 15 January 1968, shows he was found guilty of absenting himself from his unit in Vietnam without proper authority from 7 to 8 January 1968.  He was sentenced to forfeit $50.00 per month for 1 month.

	b.  Special Court-Martial Order Number 10, dated 4 May 1968, shows he was found guilty of two specifications of absenting himself from his unit in Vietnam without proper authority from 8 February to 4 March 1968 and from 6 March to 27 April 1968.  He was sentenced to forfeit $68.00 per month for 6 months, to be confined at hard labor for 6 months, and to be reduced to private/E-1.

	c.  Special Court-Martial Order Number 26, dated 26 July 1968, shows he was found guilty of violating the conditions of his parole on 12 June 1968 by failing to return at recall in the formation at forenoon and afternoon without loitering or stopping at any intermediate place and absenting himself from his place of duty without proper authority from 12 to 16 June 1968.  He was sentenced to be confined at hard labor for 6 months, to forfeit $68.00 per month for 6 months, and to be reduced to private/E-1.  He was ordered to be confined at the U.S. Army Disciplinary Barracks, Fort Leavenworth, KS.

5.  His record includes two special court-martial orders issued by the U.S. Army Correctional Training Facility, Fort Riley, KS.

	a.  Special Court-Martial Order Number 168, dated 17 September 1968, shows the unexecuted portion of his sentence pertaining to forfeiture was suspended until 8 November 1968 at which time, unless sooner vacated, the suspended portion of the sentence would be remitted without further action.

	b.  Special Court-Martial Order Number 256, dated 15 October 1968, shows all unexecuted portions of his sentence pertaining to confinement at hard labor and forfeiture were remitted effective 18 October 1968.

6.  On 9 October 1968, the U.S. Army Correctional Training Facility, Fort Riley, KS, issued Special Orders Number 109 assigning him to the 6th Armored Cavalry Regiment, Fort Meade, MD, with a reporting date of 1 November 1968.

7.  On 17 October 1968, Headquarters, 1st Squadron, 6th Armored Cavalry Regiment, Fort Meade, MD, issued Special Orders Number 205 further assigning him to Troop C, 1st Squadron, 6th Armored Cavalry Regiment.

8.  A DD Form 458 (Charge Sheet) shows he was charged with being absent without leave (AWOL) from on or about 13 November 1968 to 12 September 1974.

9.  On 19 September 1974, he voluntarily requested his case be processed under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated he had been advised of his rights by counsel, to include the effects of a less than honorable discharge, and fully understood and had been counseled concerning the President's Amnesty Program.

10.  On 20 September 1974, the separation authority approved his request and directed that he receive an Undesirable Discharge Certificate.  On 26 September 1974, he was discharged accordingly and his service was characterized as under other than honorable conditions.  His DD Form 214 shows he completed 1 year, 8 months, and 20 days of total active service with 2,294 days of lost time due to being AWOL and in confinement.

11.  On 26 August 1981, he was informed the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.

12.  In his self-authored statement he summarizes his service and provides his recollection of the events that led to his separation.  He states that after his court-martial sentence was remitted, he was sent to Troop C, 1st Squadron, 6th Armored Cavalry Regiment, Fort Meade, MD, without his MPRJ.  He was informed the unit was leaving for Vietnam and his commander told him he did not know what to do with him because he did not have his MPRJ, proper uniforms or equipment, medical records, or orders sending him to Vietnam.  His commander thought it would be best to send him home to await orders.  He states he was being set up and didn't know it.  He went home, got a job, got married, and started a family.  Approximately 4 years later he was informed of a warrant for his arrest as a deserter, he returned to military control, and he was given a discharge under other than honorable conditions.

13.  A review of the lineage and honors for 1st Squadron, 6th Armored Cavalry Regiment, does not show the unit received credit for service in Vietnam.  The record does show the unit moved from Fort Meade, MD, to Fort Bliss, TX, at some point between 1967 and 1973.

14.  Presidential Proclamation 4313, dated 16 September 1974, was issued by President Ford and affected three groups of individuals.  One group was members of the Armed Forces who were in an unauthorized absence status.  These individuals were afforded an opportunity to return to military control and elect either to be discharged under other than honorable conditions under Presidential Proclamation 4313 or to stand trial for their offenses and accept whatever punishment resulted.  For those who elected discharge, a Joint Alternate Service Board composed of military personnel would establish a period of alternate service of not more than 24 months that the individuals would perform.  If they completed the alternate service satisfactorily, they would be entitled to receive a clemency discharge.  The clemency discharge did not affect the underlying discharge and did not entitle the individual to any benefits administered by the Veterans Administration.

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

	a.  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.

	b.  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.

	c.  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 evidence of record does not support the applicant's request for upgrade of his discharge under other than honorable conditions.

2.  Other than his own statement, none of the available records substantiate his contention that he was sent home to await orders shortly after he reported for his assignment to Troop C, 1st Squadron, 6th Armored Cavalry Regiment.  The record does not show the unit was preparing for deployment to Vietnam and the unit's lineage and honors does not show it was deployed to Vietnam.

3.  The evidence of record shows he voluntarily elected discharge under other than honorable conditions under the provisions of Presidential Proclamation 4313.  There is no evidence showing he was deprived of any of his rights or that his discharge failed to meet the requirements of law and regulations.

4.  He received NJP four times, was convicted three times by special courts-martial, and had 2,294 days of lost time due to being AWOL and in confinement.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge 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)                                         AR20100026725



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ABCMR Record of Proceedings (cont)                                         AR20100026725



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