IN THE CASE OF:	  

		BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100027243 


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, in effect, an upgrade of his undesirable discharge (UD) to a general discharge (GD) and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he served in Vietnam.

2.  He states he was stationed in Vietnam and he was never court-martialed or given nonjudicial punishment (NJP) under the provisions of Article 15. 

3.  He provides a copy of his DD Form 214 for the period 7 February 1968 to 11 April 1973.

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.  On 23 June 1966, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 64A (Light Vehicle Driver). 

3.  On 6 February 1968, he was honorably discharged for immediate reenlistment.  The DD Form 214 he was issued at this time shows in:

* item 22c (Foreign and or Sea Service) he served in the U.S. Army Pacific (USARPAC) for 11 months and 29 days
* item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) he was awarded, in part, the Vietnam Service Medal (VSM) and Republic of Vietnam Campaign Medal (VCM) 

4.  On 7 February 1968, he reenlisted for a period of 6 years.  

5.  His DA Form 20 shows in:

* item 31 (Foreign Service) he served in USARPAC - Vietnam from 10 December 1966 to 8 December 1967
* item 44 (Time Lost) he was absent without leave (AWOL) during the following periods:

* 6 to 26 August 1968
* 13 to 26 July 1971
* 3 August to 6 September 1971
* 26 December 1972 to 5 March 1973

6.  The record shows that during his second term of service he received NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* being drunk and disorderly in quarters at Camp Goode, Korea, on 7 December 1968
* assaulting his wife at the main gate of Camp Goode, Korea, on 21 May 1970
* being AWOL from his unit at Fort Polk, LA, from 13 to 27 July 1971 and from 3 August to 7 September 1971

7.  A DD Form 458 shows he was charged with being AWOL from 26 December 1972 to 6 March 1973 [138 days].

8.  On 9 March 1973, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  Prior to submitting his request, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and the rights available to him.  

9.  In his voluntary request for discharge, he indicated he understood that if his request was accepted he could receive a UD.  He further acknowledged he understood that if he received a UD, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

10.  He provided a statement with his request for discharge which shows, in effect, that he attempted to obtain a compassionate reassignment after his wife had a miscarriage, was not able to obtain the necessary supporting documentation, and eventually chose not to return to his unit.

11.  On 5 April 1973, the separation authority approved his request for discharge and directed the issuance of a DD Form 258A (UD Certificate).  On 11 April 1973, he was discharged accordingly.  He completed 6 years, 5 months, and 1 day of total active military service with 138 days of lost time due to being AWOL.

12.  On 4 October 1974, The Adjutant General informed him the Army Discharge Review Board had denied his request for a change in the type and nature of his discharge.

13.  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, 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.  A UD certificate would normally be furnished an individual who was discharged for the good of the service.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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.

15.  Army Regulation 635-5 (Separation Documents) establishes standardized policy for the preparation of the DD Form 214.  The version of the regulation in effect at the time stated for item 22c to enter total active duty outside of the continental limits of the United States for the period covered by the DD Form 214 and the last oversea theater in which service was performed, e.g., "Foreign and/or Sea Service [U.S. Army Europe]."  A later version of the regulation provided for entering inclusive dates of service in Vietnam in item 30 (Remarks).

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  He was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge 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.

3.  During his second term of service he received three NJPs and he was charged with an offense punishable under the UCMJ with a punitive discharge [being AWOL].  Based on this record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a GD.

4.  The DD Form 214 covering his first term of service properly shows his foreign service in USARPAC.  The version of the governing regulation in effect at the time did not require entry of the specific country where service was performed within the larger theater; however, a later version of the regulation specified Vietnam service would be recorded in item 30 of the DD Form 214.  As a matter of equity, it would be appropriate to correct his DD Form 214 for the period ending 6 February 1968 to show the inclusive dates of his service in Vietnam.




BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is 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 adding the following statement to item 30 of his DD Form 214 for the period ending 6 February 1968:  "Service in Vietnam from 10 December 1966 to 8 December 1967."

2.  The Board further determined 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 upgrade of his discharge.



      ____________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)                                         AR20100027243



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ABCMR Record of Proceedings (cont)                                         AR20100027243



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