BOARD DATE:	 30 May 2013 

		DOCKET NUMBER:  AR20120020027 


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 his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  As a Soldier who had just returned from Vietnam, he was confused and not sure what to do.  He was constantly agitated and, as he was stationed close to his family, he frequently decided he would rather spend time with them.  His family comforted him and helped him through the rough time.  He was having a hard time adjusting after his return from war, he did not know how to handle things, he was constantly afraid, and did not know how to behave.

	b.  He constantly got into fights with his superiors and was so confused by what was expected of him that he volunteered for another tour in Vietnam.  His request was denied and he continued to have problems.  When he was approached by his command and offered a discharge or disciplinary action, he accepted the discharge without thinking.  He just wanted out of the Army and he thought it was the most expeditious way to do so.  In retrospect, this was a bad decision he made due to the stress he was under at the time.

	c.  His records show that he was a squared-away and hard-working Soldier who took orders and did a job in Vietnam.  He took care of his fellow Soldiers to ensure they were all safe.  His actions led to his receiving two Bronze Star Medals in Vietnam.  Around April to June 1969, his congressman acknowledged his actions in battle in Vietnam and his bravery by recognizing him on the floor of Congress as a true American hero,

3.  The applicant provides no additional 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.  Having had prior active service, the applicant's records show he enlisted in the Regular Army on 18 April 1969 and he held military occupational specialty 11D (Armor Reconnaissance Specialist).  

3.  On 5 September 1969, he was convicted by a special court-martial at Fort George G. Meade, MD, of being absent without leave (AWOL) from 6 July to 21 August 1969.

4.  His DA Form 20 (Enlisted Qualification Record) also shows he was AWOL from:

* 1 to 10 October 1969
* 14 to 29 October 1969
* 3 to 11 December 1969

5.  He served in Vietnam from 11 January to 30 October 1970.  He was subsequently assigned to the 2nd Squadron, 6th Armored Cavalry Regiment, Fort George G. Meade, MD.

6.  On 15 January 1971, he was reported as AWOL from his assigned unit.  He was returned to military control on 24 January 1971.

7.  On 2 February 1971, he was reported as AWOL from his assigned unit.  In a commander's inquiry, dated 5 February 1971, his immediate commander stated an inquiry into his unauthorized absence did not reveal any excessive indebtedness, there was no evidence he was having trouble with his superiors, and there was no evidence of foul play or mental instability (emphasis added).  

8.  He was returned to military control on 10 March 1971 and assigned to the U.S. Army Personnel Control Facility, Fort George G. Meade, MD.

9.  On 16 March 1971, court-martial charges were preferred against him for one specification of being AWOL from 2 February to 10 March 1971.

10.  On 23 March 1971, he 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 or dishonorable discharge, the maximum permissible punishment authorized under the Uniform Code of Military Justice (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.

11.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.  

12.  On 26 March 1971, his immediate commander recommended approval of his request for a discharge with an Undesirable Discharge Certificate.  The commander stated due to his previous special court-martial conviction he (the applicant) was eligible for a bad conduct discharge.  

13.  On 6 April 1971, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Undesirable Discharge Certificate.  On 6 April 1971, he was discharged accordingly. 

14.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service - in lieu of court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 7 months, and 23 days of net active service during this period of service with 117 days of lost time due to being AWOL.

15.  This DD Form 214, in part, also shows he was awarded the Bronze Star Medal (2nd Award) and with "V" Device.  

16.  There is no evidence in his record that shows he requested assistance in dealing with any stress/mental health issues as a result of his service in Vietnam.  There is no evidence that shows he was diagnosed with, or treated for, any stress/mental health issues/problems throughout his period of active service.

17.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

18.  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 included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

19.  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.

20.  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 evidence of record confirms 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.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His record of service shows he was convicted by a special court-martial of being AWOL for 47 days and he went AWOL on three additional occasions prior to his service in Vietnam.  Upon his return from Vietnam, he went AWOL for 10 days and again went AWOL just 9 days after he was returned to military control.  He had over 117 days, or almost 4 months, of lost time due to being AWOL.  There is no evidence that shows he was ever diagnosed with, or treated for, stress or any other mental issues while serving on active duty.  In addition, in an inquiry into his last period of AWOL, his commander stated there was no evidence that showed he had trouble with his superiors or was mentally unstable.  

4.  The fact that he served with distinction in Vietnam is noted.  However, based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, 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 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)                                         AR20120020027





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ABCMR Record of Proceedings (cont)                                         AR20120020027



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