IN THE CASE OF:	  

		BOARD DATE:	    6 August 2013

		DOCKET NUMBER:  AR20120022796 


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.

2.  The applicant states, in effect, he reenlisted in Vietnam just so he could go home on leave and get away from the killing.  His experiences in Vietnam had a severe negative impact on his emotions and mental well being.  His absence without leave (AWOL) was a result of his realization that he was unable to cope with the mental and emotional stressors in Vietnam.  However, while he was in Vietnam he served with honor as a point man.  The Army granted amnesty for draft dodges so perhaps he could be extended the same courtesy.

3.  The applicant provides:

* a self-authored statement
* two photographs
* a map of Vietnam
* DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending on 23 February 1970 and 23 November 1971

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.  Prior to the period of service under review the applicant served in the Army of the United States from 11 June 1969 through 23 February 1970 until he was honorably discharged for immediate enlistment in the Regular Army (RA).  During this period of service he was assigned to Vietnam on 2 December 1969 in military occupational specialty (MOS) 11B (Light Weapons Infantryman) with duties as a rifleman.  His DD Form 214 for this period of service shows he completed 8 months and 3 days of net service and he had 3 days of lost time due to being AWOL.

3.  On 24 February 1970, in Bien Hoa, Vietnam, he enlisted in the RA for a period of 3 years and MOS 94B (Cook).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

4.  His DA Form 20 (Enlisted Qualification Record) shows:

	a.  He was assigned to Vietnam from 2 December 1969 to 1 December 1970 and served with:

* C Company, 1st Battalion, 12th Calvary Regiment, 1st Calvary Division from 12 December to 19 December 1969
* Company E, 1st Battalion, 12th Calvary Regiment , 1st Calvary Division from 20 December 1969 to 28 February 1970
* Headquarters and Headquarters Company, 15th Transportation Battalion, 1st Calvary Division from 29 February 1970 to 1 June 1970

	b.  He was assigned to Fort Knox, KY, Special Processing Detachment/ Personnel Control Facility, Special Processing Battalion from 29 October 1970 to 23 November 1971.

	c.  He accrued a total of 505 days of lost time based on the offenses below: 

* 3 April through 6 June 1970:  AWOL (65 days)
* 7 June through 28 October 1970:  AWOL (144 days)
* 10 through 14 December 1970:  AWOL (5 days)
* 15 December 1970 through 2 April 1971:  Confinement (109 days)
* 9 through 13 April 1971:  AWOL (5 days)
* 18 April 1971:  AWOL (1 day)
* 9 May 1971:  AWOL (1 day)
* 15 May through 27 October 1971:  AWOL (166 days)
* 2 through 10 November 1971:  Confinement (9 days)

5.  His record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on10 May 1971 for being AWOL from 9 through 14 April 1971 and on or about 18 April 1971.

6.  His record contains a DD Form 458 (Charge Sheet), dated 2 November 1971, which shows he was charged with two specifications of being AWOL.

7.  His record contains a Standard Form (SF) 93 (Report of Medical History) and an SF 88 (Report of Medical Examination), dated 4 November 1971 which show he received a separation physical and he was found to be in good health and met medical retention standards.

8.  On 10 November 1971, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an other than honorable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he 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.  

9.  In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser 
included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if his 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 16 November 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 – in lieu of trial by court-martial, with an undesirable discharge and reduction to private/E-1.  Accordingly, he was discharged on 
23 November 1971.
11.  His DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 for the good of the service with an undesirable discharge.  He completed 4 months and 20 days of creditable active military service during the period under review with 508 days of lost time.

12.  On 7 August 1979, the Army Discharge Review Board, after careful consideration of his military records and all other available evidence determined he was properly discharged and denied his request for an upgrade.

13.  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 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 undesirable discharge was normally considered appropriate at the time. 

	a.  Paragraph 3-7a states 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 states 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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel the applicant voluntarily requested discharge for the good of the service 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.  Further, the applicant's discharge accurately reflects his overall record of service.



2.  He contends that his discharge should be upgraded because his decision to go AWOL was a direct result of the mental and emotional stressors associated with his service in Vietnam and the fact that "draft dodgers" were granted amnesty.  However, no matter his personal reasons for reenlisting, he voluntarily reenlisted while in Vietnam for a period of 3 years and he chose to accept the terms of a chapter 10 discharge.  

3.  Additionally, there is no evidence that he requested assistance from his chain of command or medical authorities in dealing with mental or emotional stressors while assigned to Vietnam.

4.  His record contains a history of extensive AWOL periods.  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 rendered his service unsatisfactory.  As such, 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)                                         AR20120022796



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ABCMR Record of Proceedings (cont)                                         AR20120022796



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