BOARD DATE:	  12 April 2011

		DOCKET NUMBER:  AR20110003476 


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 reconsideration of his previously denied request that his undesirable discharge under other than honorable conditions be upgraded to a general under honorable conditions discharge.

2.  He states, in effect, this is his second request for a change of his military record and hopes the Board will take the time to hear his plea.  He voluntarily joined the Army at the age of 18 because he felt it was the right thing to do at the time.  He attests that prior to his arrival in the Republic of Vietnam, he had never taken any drugs of consumed alcohol.  Upon arrival in Vietnam, he was immediately sent to the field as an infantryman, where he saw quite a bit of action.  Within 6 months, he was promoted to Squad Leader for an 81 millimeter mortar squad and earned the Combat Infantryman Badge (CIB) as a result of his actions.

3.  He provides a self-authored statement.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080015584, on 27 January 2009.

2.  He acknowledges that he made a mistake, but contends the Army failed him at the time he needed it most because no one came to his aid or offered any assistance.  He provides new argument that since his release from prison, he has become a productive member of society and has served his community well; to include establishing a foundation that provides financial aid to students.  This argument was not previously reviewed by the ABCMR.  Therefore, it is considered new evidence and as such warrants consideration by the Board.

3.  His record shows enlisted in the Regular Army on 8 July 1968 and upon completion of initial entry training he was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  He served in Vietnam from 10 December 1968 to 9 December 1969. 

4.  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 committing the following offenses in violation of articles of the UCMJ:

* failing to go at the prescribed time to his appointed place of duty on two occasions
* misconduct
* three counts of disobeying a lawful order

5.  Evidence shows he was arrested and confined by civil authorities from 26 May 1970 through 16 July 1972.

6.  His record contains a DD Form 458 (Charge Sheet), dated 6 June 1973, which shows charges were preferred against him for being in an absent without leave status from 27 March 1973 through 22 May 1973.

7. On 26 February 1971, 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  At the time, he submitted a statement on his own behalf stating, in effect, that he joined the Army to help his country in a time of war. He was awarded numerous individual and unit awards for valor and service in Vietnam.  Following his return from Vietnam, he was arrested for conspiracy, sale and possession of a dangerous drug.  He was convicted and sentenced to 3 to 6 years in the Colorado State Penitentiary.  He served 26 months and was released on good behavior.  He contended that he was an excellent Soldier up until he was released from confinement.  Following his release, he was constantly harassed by noncommissioned officers and officers who would not let him forget that he was an ex-convict.  He stated that he went AWOL to see his family because his requests for leave were denied.  He concluded that he wanted out of the Army and was tired of playing games with people in the service.

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

10.  On 9 July 1973, the separation authority approved his request and directed that he be reduced to the lowest enlisted grade and issued a DD Form 258A (Undesirable Discharge Certificate).

11.  On 9 July 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."  He completed a total of 2 years, 8 months and 14 days of creditable active military service with 840 days of lost time.

12.  His record is void of any evidence and he has not provided any evidence showing that he ever requested assistance from his chain of command which was subsequently denied.

13.  On 14 October 1976, he appeared before the Army Discharge Review Board (ADRB).  The ADRB reviewed his case and determined he was properly and equitably discharged and as a result, his request for an upgrade to a general discharge was denied.

14.  He provides a self-authored statement wherein he states it was easier for him in Vietnam than it was when he returned to the U.S..  The adjustment to going home was difficult and he turned to drugs as a way of escape ant that eventually led to his arrest, trial, conviction, and a 3 to 6 year sentence in the Colorado State Penitentiary.  He was released after serving 21 months due to good behavior and attests he would never again cross paths with law enforcement.  He feels the Army failed him at the time he needed it most because no one came to his aid or offered any assistance.

15.  He further states he never gave his discharge much thought as he continued his life.  He served his community well and tried to always do the right thing.  The nature of his discharge did not really matter to him until he buried his son in a Veterans Cemetery and made him realize that he could not be buried with him because of his discharge.  This was further compounded a year later when he buried his father who was a World War II veteran.  He established a foundation in his son's name which has given over $38,000 to students in Rhode Island so they may continue their education.

16.  He remembers when he received his CIB, how proud he was to wear it, and what he had to go through to earn it.  He wants that special moment back again and to not be penalized for one stupid mistake.  He regrets his decision and apologizes for his actions.  He concludes that he is not trying to use his father's or son's death as a reason to be excused for his actions; he would just like to be cleared to attain the same status and be buried with respect.

17.  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.

18.  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's contention that his undesirable discharge under other than honorable conditions should be upgraded to a general under honorable conditions discharge was carefully considered and determined to be without merit.

2.  His record is void of any evidence and he has not provided any evidence showing that he ever requested assistance from his chain of command which was subsequently denied.

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 a variety of offenses.

4.  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.

5.  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.

6.  Based on his record of indiscipline, he is not entitled to an upgrade of his 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20080015584, dated 27 January 2009.



      _______ _   _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)                                         AR20110003476





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ABCMR Record of Proceedings (cont)                                         AR20110003476



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