BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120003095 


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 upgrade of his undesirable discharge to an honorable discharge.  

2.  He states he discovered some improper activities within his unit and reported them to his chain of command.  He was told not to mention the subject again.  He sent a written report to the Inspector General (IG), but he never received a reply.  After that he was continually harassed by his company commander.  He went absent without leave (AWOL) hoping the Army would release him from the service.  When he returned, he found out this wasn't going to happen so he continued to go AWOL.  He turned himself in at Fort Campbell, KY, where they retained him until he was placed on administrative Christmas leave.

3.  He provides:

* Self-authored statement
* DD Form 214 (Report of Separation from Active Duty)
* Five character references

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 born on 2 January 1952 and he enlisted in the Regular Army on 24 February 1971 at the age of 19.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 71B (Clerk Typist).  He was promoted to specialist four on 18 March 1971.  He served in Vietnam from February to August 1972.

3.  His service record contains a letter, dated 18 August 1972, which indicates he failed to obey a lawful order on 28 July 1972 and failed to report to his assigned place of duty on 17 August 1972.  

4.  On 19 August 1972, he received a letter of reprimand for obtaining a sick slip to go on sick call which was illegally signed.  The letter of reprimand indicated he had not seen the doctor and he illegally assigned himself 24 hours quarters and had illegally placed the name of a commissioned officer upon the sick slip.  

5.  He was barred from reenlistment on 11 September 1972.  

6.  On 8 August 1973, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties.  

7.  On 7 December 1973, charges were preferred against him for being AWOL during the following periods in 1973:

* 10 to 23 August
* 30 August 1 October 
* 3 October to 5 November

8.  He consulted with legal counsel and 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.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge was issued.  He elected to submit statements in his own behalf.  His statements are not available.  
9.  On 17 December 1973, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 with an undesirable discharge.

10.  He was discharged on 21 December 1973 after completing 2 years, 7 months, and 3 days of creditable active service with 86 days of lost time.

11.  He provided a self-authored statement in which he stated:

	a.  he attained the pay grade of E-4 and was nominated to attend the E-5 promotion board, but he didn't pass the board for E-5.

	b.  he developed mental issues related to the events he witnessed in Vietnam.  He believes these issues caused him to use heroin in Vietnam.  After failing a drug test, he was treated for heroin addiction in Vietnam then he was transferred to a unit at Fort Hood, TX.  At this unit, he served as an operations clerk and continued to receive counseling for his drug addiction.  He continued to experience mental issues at Fort Hood, TX.  He hasn't used any kind of drugs since his return from Vietnam.  

	c.  while performing his duties at Fort Hood, TX, he observed false documents reporting soils compaction tests being performed on small dams being constructed by the 62nd Engineer Battalion at a golf course.  He reported the situation, but he was told never to mention it or to discuss it with anyone.  He notified the IG, but he didn't get a response.  After this incident, his company commander performed inspections on a regular basis .  He determined these events were harassment because he notified the IG.  

	d.  while he was on administrative leave, he received a notice of an undesirable discharge from the service.  

	e.  he was quite young at the time and he wasn't very experienced in the ways of the world along with the latent issues brought on by his service in Vietnam.  He now realizes it was a bad decision.  If he was knowledgeable at that time, he would have tried to be reassigned out of the 62nd Engineer Battalion for the rest of his time in the Army.  

12.  He also provided five character references from coworkers, family, and friends who attested to the applicant's excellent work ethics, dependability, honesty, and trustworthiness.  

13.  His service record doesn't indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.
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 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.
   
16.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged with the commission of the offense of AWOL which is punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's contentions regarding his mental issues relating to events in Vietnam are acknowledged.  However, his service record does not indicate he was diagnosed with a mental condition.  In addition he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct (AWOL) which led to his discharge.  

3.  His service record shows he received one Article 15, a letter of reprimand, a bar to reenlistment, and he had 86 days of lost time.  In addition, his service record indicates he failed to obey a lawful order and failed to report to his assigned place of duty.  

4.  His service record is void of evidence which supports his contentions regarding false documents reporting soil compaction tests or that he was harassed by his company commander for reporting the incident to the IG.  

5.  He contends he was young and wasn't experienced in the ways of the world. Records show the applicant was 20 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  

6.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable 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)                                         AR20120003095





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ABCMR Record of Proceedings (cont)                                         AR20120003095



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