BOARD DATE:	  23 May 2013

		DOCKET NUMBER:  AR20120020469 


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 the denial of an honorable discharge was not a just outcome of his attendance at a questionable part in the United States in comparison to his 12 months of service in Vietnam where he earned the Combat Infantryman Badge and the Bronze Star Medal.  His punishment was too severe for the infractions. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 13 March 1970 and he held military occupational specialty 11B (Light Weapons Infantryman). 

3.  Subsequent to completion of training, he was reassigned to the Overseas Replacement Station, U.S. Army Personnel Center, Oakland, CA, for movement to Vietnam.  

4.  On 6 August 1970, he departed the replacement station in an absent without leave (AWOL) status.  However, he returned to military control on 2 September 1970.  

5.  On 2 September 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 6 August to 1 September 1970. 

6.  He served in Vietnam from 4 September 1970 to 4 September 1971.  He was assigned to the 4th Battalion, 3rd Infantry, 11th Infantry Brigade.  

7.  While in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for sleeping on bunker guard duty. 

8.  He was awarded or authorized the Vietnam Service Medal with one bronze service star, Republic of Vietnam Campaign Medal, Combat Infantryman Badge, Bronze Star Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

9.  Upon completion of his Vietnam tour, he was reassigned to the 2nd Battalion, 41st Infantry, 2nd Armored Division, Fort Hood, TX.

10.  While at Fort Hood, on 26 January 1972, he was convicted by a special court-martial of one specification of being AWOL from 3 December 1971 to 7 January 1972.  The court sentenced him to a forfeiture of pay, a reduction to  E-2, and performance of extra duty.  The convening authority approved his sentence. 

11.  On 24 February 1972, his immediate commander initiated a Certificate of Unsuitability for Enlistment/Reenlistment (bar to reenlistment) citing his misconduct and unsatisfactory conduct and efficiency.  The applicant was furnished with a copy of the bar but he elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

12.  On 16 August 1972, his command preferred court-martial charges against him for one specification of being AWOL from 26 June to 19 July 1972. 
13.  On 29 August 1972, the applicant 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 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 indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the discharge request was approved 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
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement on his own behalf

14.  On 30 and 31 August and 14 September 1972, his immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.  The immediate commander stated: 

* The applicant had been a disciplinary problem since his arrival to the unit; he had expressed hostility towards the Army and symbols of authority
* Despite constant counseling by his commissioned and noncommissioned officers, he remained indignant, cocky, and unwilling to change his attitude
* He was reported AWOL and dropped from the rolls as a deserter

15.  On 19 September 1972, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  
16.  On 3 October 1972, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 
2 months, and 15 days of active service and he had over 100 days of lost time.

17.  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.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions discharge is normally considered appropriate.

	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 request that his under other than honorable conditions discharge be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  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.  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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his arguments:

	a.  The applicant's service in Vietnam as well as awards of the Combat Infantryman Badge and the Bronze Star Medal were carefully considered.  However, they do not outweigh his extensive history of misconduct as evidenced by his NJP, court-martial conviction, bar to reenlistment, multiple instances of AWOL, and negative attitude towards the Army. 

	b.  Nothing in the applicant's record shows he was forced to choose the discharge.  He went AWOL by choice.  When presented with his options, he willingly chose the discharge.  He could have elected trial by a court-martial if he felt he was innocent of the charge.  

	c.  Contrary to his contention that his punishment was severe, had he accepted the court-martial and been convicted, he could have received a dishonorable or a bad conduct discharge. 

4.  Based on his record of indiscipline, his service clearly did 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 an upgrade of his discharge 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)                                         AR20120020469





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020469



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1