IN THE CASE OF:	  

		BOARD DATE:	  11 July 2013

		DOCKET NUMBER:  AR20120022694 


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 to an honorable discharge.

2.  The applicant states:

	a.  He is now 62 years of age.  When he returned from Vietnam he had a lot of problems and he could not get any help.  He served 1 year and 3 days in Vietnam.  He was told he could request an upgrade of his discharge after a few years.  He would like his discharge upgraded to an honorable discharge because he thinks he has been punished enough.  He served a year for his country overseas.

	b.  He does not want to die and leave this for his kids to live with knowing that their dad served overseas for his country just to die with this disgrace.  He had trouble dealing with the things that went on around him while he was overseas.  He turned to alcohol to help him cope with the bombs and danger all the time.  He still has nightmares about those times in Vietnam.  He still hears the bombs going off and people around him.  He was afraid of being killed.  He knows people who never served in the military that have done worse things than he ever did in the Army and they did not suffer the punishment that he has.  He would appreciate an upgrade of his discharge.

3.  The applicant provides two Department of Veterans Affairs (VA) Forms
21-4138 (Statement in Support of Claim).

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 2 November 1967.  He completed training and he was awarded military occupational specialty
62F (Crane Operator).  He was advanced to the rank/grade of private first class (PFC)/E-3 on 5 June 1968.  He served in Vietnam from 21 May 1968 to 24 May 1969.

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 15 May 1968 for being absent without leave (AWOL) from 27 to 29 April 1968 and from 11 to 12 May 1968
* 3 September 1968 for sleeping while on sentinel post on 27 August 1968
* 2 October 1968 for being AWOL on 7 September 1968, willfully disobeying a lawful order from his superior noncommissioned officer (NCO), and breaking restriction

4.  On 20 February 1969, he was convicted by a summary court-martial of one specification of breaking restriction and two specifications of violating a lawful general regulation.  His sentence included 30 days of hard labor without confinement and a forfeiture of pay.

5.  He also accepted NJP under the provisions of Article 15, UCMJ, on:

* 29 July 1969 for being AWOL on 23 July 1969
* 7 October 1969 for being AWOL from 23 to 24 September 1969 and from 25 to 29 September 1969
* 
29 November 1969 for being AWOL on 25 November 1969
* 13 January 1970 for being AWOL on 8 January 1970
* 20 January 1970 for being AWOL on 20 January 1970
* 27 January 1970 for being AWOL on 23 January 1970
* 7 April 1970 for being AWOL from 23 to 31 March 1970

6.  On 26 January 1970, a bar to reenlistment against the applicant was approved.

7.  On 2 September 1970, he was convicted by a special court-martial of one specification each of being AWOL from 16 to 23 July 1970 and from 24 to 30 July 1970.  His sentence included a reduction to private (PV1)/E-1, hard labor for
2 months, and restriction for 3 months.

8.  In a Commanding Officer's Inquiry memorandum, dated 17 September 1970, the applicant's company commander stated:  The applicant was reported AWOL on 10 September 1970 and he was dropped from the rolls of his unit on
17 September 1970.  It was believed the applicant had no desire to return to his unit.  He received a court-martial as a result of his previous AWOL.  He was counseled concerning the results of that AWOL and the effects of going AWOL again.  Nothing was found in the applicant's personal or military items left behind to give reasons for his unauthorized absence.  There was no evidence of foul play or mental instability.

9.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a DD Form 214 that shows he was discharged on 22 January 1971, under the provisions of Army Regulation 635-200, chapter 10, and furnished an Undesirable Discharge Certificate.  He completed 2 years, 11 months, and 27 days of total active service with 972 days of time lost.

10.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for 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.  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 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 evidence of record reveals an extensive history of misconduct and his multiple AWOL offenses, including conviction by a special and a summary court-martial, ten Article 15s, and a bar to reenlistment.

2.  The applicant's contentions were carefully considered; however, his record is void of the facts and circumstances which led to his voluntary discharge.  It is noted that he had accepted an Article 15 for being AWOL before he ever arrived in Vietnam.  He was charged with the commission of offenses 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.  It is presumed he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

3.  He has not provided sufficient evidence or argument to show his discharge should be upgraded or to mitigate the character of his discharge.  His military record contains no evidence that would entitle him to an upgrade of his 

discharge.  It is presumed that his misconduct diminished the quality of his service below that meriting an honorable or a general discharge.

4.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20120022694



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ABCMR Record of Proceedings (cont)                                         AR20120022694



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