IN THE CASE OF:	  

		BOARD DATE:	  2 May 2013

		DOCKET NUMBER:  AR20120017841 


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.  The applicant states, in effect, he attained the rank/grade of specialist four (SP4)/E-4, he served in Vietnam for 11 months, and he participated in the battle at Con Thien.  While on leave en route to his next assignment, he requested a second tour in Vietnam; however, his request was denied and he became very depressed.  He wanted to serve his country and he did not feel he could do so while stateside.  He never reported to his next duty station at Fort Bliss, TX.  He lived as a recluse until he surrendered to military authorities at Fort Meade, MD in February 1972 where he was charged with being absent without leave (AWOL).  He believes his undiagnosed post-traumatic stress disorder (PTSD) and depression were factors in his decision but he could not afford to seek medical help.

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a letter of support




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.  On 31 July 1969, he enlisted in the Regular Army for a period of 3 years.  After completion of training, he was awarded military occupational specialty 17B (Counter Battery Radar Crewman).

3.  His record contains a DA Form 20 (Enlisted Qualification Record) that shows:

	a.  He served in Vietnam from 4 January 1970 to 20 November 1970 when he departed Vietnam en route to Fort Bliss.

	b.  He had the following periods of time lost:

* 29 December 1969 to 1 January 1970, 4 days (AWOL)
* 31 December 1970 to 15 February 1972, 412 days (AWOL)
* 16 February 1972 to 21 March 1972, 36 days (pre-trial confinement)

4.  Summary Court-Martial Order Number 2, issued by Headquarters, 108th Artillery Group, dated 11 September 1970, shows that contrary to his pleas, he was found guilty of the following specifications:

* disrespect to a superior warrant officer
* appeared in a uniform with no name tag, insignia, or U.S. Army, that had been excessively tailored and wearing Buddhist beads 
* wrongfully possessed a pipe containing traces of marijuana
* apprehended for an off-limits violation and fraternization with Vietnamese female Nationals

5.  On 16 February 1972, a Military Police report shows the applicant surrendered to military authorities for the offense of AWOL at Fort Meade.

6.  On 24 February 1972, court-martial charges were preferred against him for being AWOL from on or about 31 December 1970 to on or about 16 February 1972.

7.  On the same day, having consulted with legal counsel, he voluntarily requested a 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.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Federal and State veterans benefits.  He elected not to submit a statement in his own behalf.

8.  On 22 March 1972, the appropriate authority approved his 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 be reduced to pay grade E-1 and issued an Undesirable Discharge Certificate.  On 22 March 1972, he was discharged accordingly.  He completed 1 year, 4 months, and 25 days of total active service.

9.  On 30 July 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge.

10.  The applicant provides a letter of support that states the applicant was withdrawn and quiet during his AWOL period.  Further, the trauma from battle had left a mark on him causing his personality to change.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	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 requests upgrade of his discharge under conditions other than honorable to an honorable discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows a pattern of misconduct that included a summary court-martial while in Vietnam and 452 days of time lost due to AWOL (including 4 days prior to ever arriving in Vietnam) an offense for which he could have been tried by court-martial and punished with a punitive discharge under the Uniform Code of Military justice.  He elected not to submit a statement in his own behalf describing any mitigating circumstances that he wanted the separation authority to consider in making a decision on his request.  The record shows all requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting him 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)                                         AR20120017841



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ABCMR Record of Proceedings (cont)                                         AR20120017841



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