IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120001481 


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 undesirable discharge.

2.  The applicant states he honorably served in Vietnam and he received traumatic brain injuries (TBI).  As such, he does not feel he should be liable for any actions after his injuries.

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 12 September 1968 and 18 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.  The applicant was inducted into the Army of the United States on 25 July 1967 and he held military occupational specialty 11B (Light Weapons Infantryman).

3.  On 26 September 1967, while in training, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 24 to 26 September 1967.

4.  He served in Vietnam from 17 January to 6 June 1968.  He was wounded in combat when he sustained a fragment wound to the left arm and shoulder on 16 May 1968.  He was evacuated to Walter Reed Army Medical Center with a subsequent reassignment to Fort Bragg, NC.

5.  He was honorably discharged on 12 September 1968 for the purpose of immediate enlistment.  His DD Form 214 shows he was awarded the:

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* Bronze Star Medal
* Purple Heart

6.  He executed a 6-year enlistment on 13 September 1968 at Fort Bragg. While there, he also accepted NJP under the provisions of Article 15, UCMJ on:

* 31 October 1969 for being AWOL from 22 to 30 October 1969
* 29 June 1970 for failing to go at the time prescribed to his appointed place of duty on three separate occasions

7.  On 14 January 1971, he was convicted by a special court-martial of one specification of AWOL from 2 November to 16 December 1970.  The Court sentenced him to hard labor for 3 months and a reduction to the lowest enlisted grade.  The convening authority approved his sentence.

8.  He again served in Vietnam from 3 March to 21 July 1971.  While on this tour of duty he accepted NJP under the provisions of Article 15, UCMJ on 20 March 1971 for being AWOL on 18 March 1971.

9.  Upon his return from Vietnam, he was assigned to Fort Campbell, KY.  While there, he accepted NJP under the provisions of Article 15, UCMJ on:

* 18 April 1972 for failing to go at the time prescribed to his appointed place of duty and missing unit movement
* 6 December 1972 for disobeying a lawful order

10.  On 29 December 1972, he departed his unit in an AWOL status and on an unknown date, he was dropped from the rolls of the Army as a deserter.  He surrendered to military authorities on 8 February 1973.

11.  His record contains a DD Form 261 (Report of Investigation), dated 16 April 1973, that shows on 8 February 1973, while awaiting a doctor at the Fort Campbell Hospital, he was informed of his impending transfer to the stockade.  He became very agitated and began making threats.  He then picked up a pair of suture scissors and cut his wrists.  His injury was determined to be not in the line of duty - due to own misconduct.

12.  On 13 February 1973, his command preferred court-martial charges against him for:

* one specification of committing an assault upon another Soldier (a specialist) by slashing at him with a knife
* one specification of committing an assault upon another Soldier (a sergeant) by slashing at him with a knife
* one specification of AWOL from 29 December 1972 to 8 February 1973

13.  On 7 March 1973, the applicant consulted with legal counsel who advised him 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 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.  In his request for discharge, he acknowledged:

* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood he could expect to encounter substantial prejudice in civilian life
14.  He elected not to submit a statement in his own behalf.  He indicated he was aware that he would receive an undesirable discharge and that he would lose all State and Federal benefits.  He also stated he was aware he would find it hard to get a job.  He further stated he had bills he could not pay because he was not making enough money out of the Army.

15.  On 14 March 1973, his immediate commander recommended disapproval of the request for discharge.  However, his intermediate and senior commanders recommended approval with the issuance of an Undesirable Discharge Certificate.

16.  On 12 April 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He directed the applicant's reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.

17.  On 18 April 1973, after undergoing a separation physical and being found fully qualified for separation, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  He completed 4 years, 2 months, and
9 days of net service this period for 5 years, 3 months, and 27 days of total active service.  He accrued 148 days of time lost during his service.

18.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

19.  There is no evidence of record and he did not provide any evidence that shows he sustained or was diagnosed with a TBI.

20.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  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. 

	b.  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

	c.  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 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.  Further, his discharge accurately reflects his overall record of service.

2.  The applicant's service in Vietnam and award of the Purple Heart are not in question.  However, there is no evidence of record and he provides none to show he suffered from a TBI or addressed this issue with medical personnel or that his extensive history of misconduct was caused by his claimed TBI.

3.  In fact, his military service was marred by misconduct prior to, during, and after his service in Vietnam.  It began with a short AWOL, progressed into assault, and culminated with desertion.  Along the way, he received five
Article 15s and he was convicted by at least one court-martial.

4.  Furthermore, he underwent a separation physical examination and he was found fully qualified for separation.  In any case, he could have elected trial by a court-martial if he believed his TBI or any other medical condition was a contributing factor to his history of misconduct.

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.

6.  In view of the foregoing, there is no basis for granting the applicant 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)                                         AR20120001481



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ABCMR Record of Proceedings (cont)                                         AR20120001481



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