IN THE CASE OF:	  

		BOARD DATE:	 1 May 2012

		DOCKET NUMBER:  AR20110021587 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* he served his country for two tours in Vietnam and he was at his best until he got back to the United States
* he fell into some trouble and he was unable to be himself again
* he is forced to live with a type of discharge which, due to miscommunication and misunderstanding on both parties, happened in the past
* he now needs the upgrade to improve his quality of life

3.  The applicant did not provide any evidence.

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 on 20 May 1966 for a period of
3 years.  He held military occupational specialty 63B (Wheel Vehicle Mechanic).  He arrived in Vietnam on 4 September 1967.

3.  While in Vietnam, on 27 February 1968 he was honorably discharged for the purpose of immediate reenlistment.  He executed a reenlistment on 28 February 1968.  He departed Vietnam on 2 October 1968 for reassignment to Fort Meade, MD.

4.  His record shows he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with Device (1960).

5.  His record also shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 24 October 1967, in Vietnam, for failing to return to his assigned duties from sick call on 23 October 1967
* 31 August 1968, in Vietnam, for:

*  disobeying a lawful written order by being in an off-limits area on
29 July 1968
* violating a general regulation by possessing three ration cards for a group purchase with written authorization on 29 July 1968

* 19 September 1968, in Vietnam, for:

* disobeying a lawful order by a noncommissioned officer (NCO) on
18 September 1968
* being absent from his appointed place of duty on 18 September 1968
* wrongfully appearing in an improper uniform on 19 September 1968

* 27 September 1968, in Vietnam, for being absent without leave (AWOL) from 24-26 September 1968
* 31 December 1968, at Fort Meade, for failing to go at the time prescribed to his appointed place of duty on 23 December 1968
* 
8 February 1969, at Fort Meade, for:

* failing to go at the time prescribed to his appointed place of duty on
7 February 1969
* disobeying a lawful order from a superior NCO (first sergeant) on
7 February 1969

6.  His record shows he was reported in an AWOL status from 1-28 March 1969 and from 1 April to 1 July 1969.

7.  On 14 July 1969, he again departed his unit in an AWOL status, and on
23 July 1969, he was dropped from the rolls of the Army as a deserter.  He was subsequently returned to military control on 6 January 1970.

8.  On 15 January 1970, his command preferred court-martial charges against him for three specifications of AWOL from 1-28 March 1969, 1 April to 1 July 1969, and 14 July 1969 to 6 January 1970.

9.  On 20 January 1970, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, 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.

10.  In his request for discharge, he acknowledged he:

* was making the request of his own free will and he had not been subjected to any coercion
* understood that if the discharge request was approved he could be furnished an Undesirable Discharge Certificate
* understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA)
* could be deprived of his rights and benefits as a veteran under both Federal and State laws

11.  On 3 February 1970, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 3 February 1970.

12.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an undesirable discharge.  He completed 3 years, 4 months, and 11 days total active service with and he had 234 days of time lost.

13.  On 3 June 1974, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board (ADRB) determined he was properly discharged.  As such, the ADRB denied his petition for an upgrade of his discharge.

14.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was considered appropriate at the time.

	a.  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.

	b.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record shows 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.  He voluntarily, willingly, and in writing 

requested discharge from the Army 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.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

2.  Contrary to his contention that his problems started after leaving Vietnam, the evidence of record shows he received NJP on at least four occasions for various infractions.  There is no evidence that the applicant's repeated misconduct, beginning with his disregard of authority in Vietnam and ending with the court-martial charges, was a result of his Vietnam service.  Regardless, he could have elected trial by a court-martial if he had believed he was innocent.

3.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either 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 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)                                         AR20110021587



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ABCMR Record of Proceedings (cont)                                         AR20110021587



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