IN THE CASE OF:	  

		BOARD DATE:  9 February 2012

		DOCKET NUMBER:  AR20110015697 


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 a previous application to upgrade his under other than honorable conditions discharge to an honorable discharge.

2.  He states he is listing the facts in response to the findings contained in Army Board for Correction of Military Records (ABCMR), Docket Number AR20100023906, dated 5 April 2011:

   a.  He enlisted in the Army on 24 October 1969 under the buddy plan with AO; however, the Army did not honor his contract.  He and AO were sent to two different locations.
   
   b.  He was given an honorable discharge for his service during the period
24 October 1968 to 10 August 1970.  He reenlisted to serve in Vietnam.
   
   c.  He had a good reason for going absent without leave (AWOL).  While he was serving in Vietnam, his wife gave birth to another man’s child.  During the same time, his mother was going through a divorce along with child custody hearings.  He tried to deal with his family issues while maintaining his good standing as a Soldier.  
   
   d.  In addition to being assigned to the 515th Transportation Company and the 57th Transportation Company while in Vietnam, he was also assigned to the 666th Transportation Company during his tour. 
   
   e.  The nonjudicial punishment (NJP) he received on 14 January 1971 was during his assignment to the 666th Transportation Company.  He remembers having an argument with his platoon leader, who he claims did not like him. 
   
   f.  He was not sleeping on guard duty on 10 October 1971.  He contends he remembers the charge, but the date is incorrect.  With only 30 days remaining in country, he would not have been placed on guard duty.  He states, "I will tell the ABCMR the same thing I told my company officer, at the time I confronted this punk lieutenant , I should have shot and killed him."  However, he was informed he would have been charged with murder.  
   
   g.  Before he went AWOL on 3 April 1972, he requested to be sent back to Vietnam and his request was denied.  After his service in Vietnam, he found it hard to adjust to military duty again.  In fact, he has been told he has Post- Traumatic Stress Disorder.
   
   i.  If the Board still deems his service to this country as dishonorable, then his response is that he has more honor in his little finger than a majority of the people who have led this country.  

3.  He provides a copy of a letter written to his Member in Congress. 

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 ABCMR in Docket Number AR20100023906, on 5 April 2011.

2.  He provided new arguments which the Board will take into consideration.

3.  His record shows he enlisted in the Regular Army on 24 October 1969 for the Buddy Basic Enlistment Plan Option and Army Career Group 11 (Armor).  A DA Form 3286-2 (Statements for Enlistment:  Part VI – Buddy Basic Training Plan Enlistment Option) shows in line a he was assured that provided the prescribed requirements were met, he would remain with AO during the first 8 weeks of basic training.

4.  A copy of Headquarters, U.S. Army Reception Station, Fort Campbell, KY, Special Orders Number 225, issued on 30 October 1969 does not indicate the applicant as being enrolled in the Buddy Plan Series.   

5.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he reenlisted on 11 August 1970 for an assignment to Vietnam.  This document also shows he served honorably from 24 October 1969 to 10 August 1970. 

6.  His record contains a DA Form 20 (Enlisted Qualification Record) which shows he served in Vietnam from 6 November 1970 to 1 November 1971 and was assigned to the 515th Transportation Company and the 57th Transportation Company.  

7.  His record contains four DA Forms 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), which all contain his signature and does not show he appealed any of the following offenses for which he was charged:

* 28 August 1970, for being AWOL from 16 to 21 August 1970
* 26 October 1970, for being AWOL from 11 to 25 October 1970
* 13 January 1971, for disobeying a lawful order
* 7 October 1971, for sleeping on his post at Camp Eagle on 4 October 1971

8.  The DA Form 2627-1, dated 7 October 1971, shows he was assigned to the 666th Transportation Company at the time he was administered the NJP for sleeping on his post. 

9.  His DA Form 20 shows he departed AWOL on 3 April 1972 and was subsequently dropped from the rolls of the Army as a deserter on 9 May 1972.

10.  On 29 June 1972, he surrendered to military authorities.  Court-martial charges were preferred against him on the same day for one specification of being AWOL from 3 April 1972 until his return to military control.

11.  His record shows he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  

12.  His chain of command supported his voluntary request for discharge and the separation authority approved the request and directed he be issued an Undesirable Discharge Certificate.

13.  On 5 December 1972, he was discharged with an under other than honorable conditions characterization of service.  He had served 2 years, 10 months, and 4 days of total active service with 85 days of lost time due to AWOL.

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, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

16.  Army Regulation 635-200 provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND CONCLUSIONS:

1.  The veracity of his argument that the Army did not honor his enlistment contract under the Buddy Plan Series appears to have validity.  Special Orders Number 225, issued on 30 October 1969, does not show him as attending basic training with AO.  However, at this late date, there is no effective relief that the Board can provide if in fact his contract was not honored.

2.  The evidence shows he served his country honorably from 24 October 1969 to 10 August 1970 and that he reenlisted for service in Vietnam. 

3.  The evidence shows that between 4 and 7 October 1969, the period his last NJP was administered, he was assigned to the 666th Transportation Company.  His date of arrival to this unit is not known. 

4.  He argues that some of the dates and offenses for which he was charged are incorrect.  His record contains four DA Forms 2627-1 which list the offenses and dates for which he was charged.  He signed each document acknowledging notification of the charges, and did not rebut any of the charges at the time.

5.  The applicant’s charges, nearly 40 years later, when the evidence of record shows otherwise, are not credible.  There is the presumption of government regularity that the Army did not violate his rights in any way and that all charges were justified. 

6.  His extensive record of indiscipline does not meet the standards of acceptable service.  As a result, he is not entitled to an honorable 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20100023906, dated 5 April 2011.




      _________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)                                         AR20110015697





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ABCMR Record of Proceedings (cont)                                         AR20110015697



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