IN THE CASE OF:	  

		BOARD DATE:	    28 July 2011

		DOCKET NUMBER:  AR20110001622


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 his Undesirable Discharge (UD) be upgraded to an under honorable conditions (General) discharge (GD).

2.  The applicant states:

* he served from 18 April 1966 to 10 May 1972
* he served 3 years in Germany and 1 year in Vietnam
* he was 20 years old when he went to Vietnam and turned 21 there
* he saw things in Vietnam that he has never forgotten
* when he returned from Vietnam, he was treated like "crap"
* people told him he should have just stayed in Vietnam
* he asked to be discharged and understood he'd still receive his benefits
* he now has learned his service was "dishonorable"

3.  The applicant provides three DD Forms 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 enlisted in the Regular Army for 3 years on 18 April 1966.  He completed Basic Combat Training at Fort Benning, GA in June 1966, and he completed Advanced Individual Training at Fort Knox, KY in October 1966.  He was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic) and transferred to Germany for his first permanent duty assignment.

3.  In Germany, the applicant was assigned to Company A, 2nd Battalion, 33rd Armor where he served as a mechanic and a tank crewman (loader and driver).  On 25 April 1967, he was honorably discharged in order to reenlist for 4 years.  He reenlisted on 26 April 1967.

4.  The applicant departed Germany in April 1968 for training at Fort Lee, VA.  He retrained from MOS 63C to MOS 41J (Office Machine Repairer).  In December 1968, he returned to Germany and an assignment with the 881st Light Equipment Maintenance Company, where he was promoted to temporary E-6 (permanent E-5).  On 18 July 1969, he was honorably discharged in order to reenlist for 6 years on 19 July 1969.

5.  On or about 19 November 1969, the applicant departed Germany en route to Vietnam via the United States.  He arrived in Vietnam on or about 9 January 1970.  On 13 January 1970, he was assigned to Headquarters Company, Special Troops, U.S. Army Vietnam (USARV) where he worked as an office machine repairman.  He was twice reassigned in Vietnam; first to the 67th Maintenance Company, then to the 63rd Maintenance Battalion.  At each unit, he was an office machine repairer.  He departed Vietnam on or about 29 November 1970.

6.  The applicant's records contain a DA Form 20 (Enlisted Qualification Record). This document shows his conduct and efficiency were rated "excellent" from his entry on active duty in April 1966 to his assignment with the 63rd Maintenance Battalion.  His assignment with the 63rd Maintenance Battalion from on or about 16 April 1970 to on or about 29 November 1970 was only rated "good" for conduct and efficiency.



7.  In Vietnam, the applicant accepted two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice:

	a.  on 13 October 1970, for violating a lawful written order on 16 September 1970 by entering an off-limits area known for prostitution and for violating curfew regulations, for which he was reduced from E-5 to E-4 and made to forfeit $100 pay per month for 1 month;

	b.  on 22 October 1970, for being drunk and disorderly on 17 October 1970, endeavoring to pick fights with noncommissioned officers, and disrespect to noncommissioned officers; and for wrongfully and willfully discharging an M-16 rifle in the billets area on 17 October 1970, for which he was reduced from E-4 to E-3 and made to forfeit $100 pay per month for 1 month.

There is no record of the reductions imposed by the above NJPs becoming effective.

8.  The applicant returned to the United States and was assigned to Fort Jackson, SC on or about 6 January 1971.  He was still a permanent E-5 and was assigned duties as a Drill Sergeant.  On or about 2 March 1971, he absented himself from his unit without proper authority (AWOL) and remained absent through 3 June 1971 (94 days).  He was AWOL again from 7-19 June 1971 (13 days).

9.  The applicant was tried and convicted by a special court-martial on 30 July 1971 for his two periods of AWOL and he was reduced to E-4 and made to forfeit $40 pay per month for 3 months.

10.  The applicant's records show he was again AWOL from 3 December 1971 through 15 March 1972 (104 days).  On 27 March 1972, the applicant was formally charged with 104 days of AWOL.  On 31 March 1972, he consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He stated that he understood the nature and consequences of the UD that he might receive.  He submitted a statement in his own behalf in which he:

* recounted his voluntary enlistment in 1966
* recounted his honorable service until going to Vietnam
* said his AWOLs were due to personal problems and inability to adjust to the serving after Vietnam
* said he would continue to go AWOL, so the Army should accept his request for discharge

11.  On 27 April 1972, the approving authority accepted the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  A UD was directed.

12.  On 10 May 1972, the applicant was discharged with a UD.  His DD Form 214 was for the period 19 July 1969 through 10 May 1972 shows he had 211 days of lost time.

13.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 7 August 1981, denied his request.

14.  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.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

15.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (HD) 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	b.  Paragraph 3-7b states 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 HD.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant requests a discharge upgrade to GD.  He blames his Vietnam service for his problems and his ultimate separation with a UD.

2.  The applicant's record shows he was a good Soldier from enlistment through his late 1969 transfer from Germany to Vietnam.  In Vietnam, the applicant received two NJPs for:  an off-limits and curfew violation; and misconduct in the billets area – baiting noncommissioned officers, disrespect towards noncommissioned officers, and firing an M-16 in the billets area.

3.  When he returned to the United States, the applicant went AWOL for 107 days and was convicted by a special court-martial.  He then went AWOL for 104 days and new charges were preferred against him.  He requested discharge in lieu of trial by court-martial and his request was approved.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  This request, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received. 

5.  There is no evidence the applicant's service in Vietnam was the cause of his misconduct and ultimate discharge.  Approximately 2.6 million service members served on the ground in Vietnam during the Vietnam War.  The vast majority served with honor and distinction and did not become disciplinary problems as a result of that service.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20110001622





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110001622



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1