IN THE CASE OF:	  

		BOARD DATE:	  25 July 2013

		DOCKET NUMBER:  AR20130000404 


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 he served his country on the battlefield in Vietnam and when he got home, he was offered kitchen police duty.  He now realizes leaving in an absent without leave (AWOL) status was not the right thing to do but at the time, he did not think of the long-term implications of his decision.  He just let his temper take control.  He is a very patriotic person. 

3.  The applicant provides:

* State criminal record search
* Letters of support/character reference letters
* 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's records show he enlisted in the Regular Army on 2 November 1970 and he held military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 11 March 1971, he departed his unit in an AWOL status and on 10 April 1971, he was dropped from the rolls as a deserter.  He returned to military control on 9 June 1971.  

4.  On 14 June 1971, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for missing reveille. 

5.  On 18 June 1971, he again departed his unit in an AWOL status but he returned to military control on or about 12 July 1971. 

6.  On 11 August 1971, he pled guilty at and was convicted by a special court-martial of two specifications of AWOL from 11 March to 9 June 1971 (amended to 15 May 1971) and 18 June to 12 July 1971 (amended to 3 July 1971).  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $80.00 pay per month for 4 months.  

7.  On 12 August 1971, the convening authority approved the sentence but suspended the confinement for a period of 4 months.  

8.  On 3 November 1971, he again accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty. 

9.  He served in Vietnam from 21 November 1971 to on or about 24 June 1972. He was awarded or authorized the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, National Defense Service Medal, Vietnam Service Medal, Combat Infantryman Badge, and Vietnam Campaign Medal. 

10.  While in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ as follows:



* on 19 March 1972, for absenting himself from his unit.
* on 23 March 1972, for breaking restriction
* on 3 June 1972, for failing to be at the time prescribed at his appointed place of duty

11.  On 17 August 1972, he departed his Fort Bragg, NC, unit in an AWOL status and on 16 August 1972, he was dropped from rolls as a deserter.  He returned to military control on 25 June 1973.  

12.  On 3 July 1973, court-martial charges were preferred against him for one specification of being AWOL from on or about 17 August 1972 to on or about 
25 June 1973.  

13.  On 10 July 1973, the applicant 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 discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

14.  In his request for discharge, the applicant acknowledged:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request were approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he submitted a statement wherein he stated "I don't like the Army; I want out the quickest way possible; I've been in the Army for 3 1/2 years, I've seen nothing I like about it…If I don't get out this time, I will only go AWOL again if I ever get the chance"

15.  Between 23 July 1973 and 13 August 1973, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander opined that in view of the applicant's multiple periods of AWOL and several instances of NJP, the applicant lacked any rehabilitation potential.  

16.  On 13 August 1973, consistent with the chain of command recommendations, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial and directed his reduction to the lowest enlisted grade, if applicable, and issuance of an Undesirable Discharge Certificate.  He was discharged accordingly on 21 August 1973.

17.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 1 year, 4 months, and 9 days of active service during this period and he had 521 days of lost time. 

18.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

19.  He submitted a state criminal records search that shows he was charged with minor traffic violations.  He also submitted several letters of support and/or character reference letters wherein the authors describe him as a good person.  He is dependable and hardworking.  

20.  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 a time.

	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 records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He 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.

2.  The available evidence clearly shows a period of service marred with misconduct from the beginning and continued throughout his military service.  He had four instances of AWOL, five instances of NJP, and one court-martial conviction.  His service in Vietnam did not outweigh his extensive history of misconduct.  

3.  He elected to be AWOL on more than one occasion.  Also, upon preferring of court-martial charges against him, he consulted with counsel.  His options were to face trial by court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose discharge.  

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty 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)                                         AR20130000404





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ABCMR Record of Proceedings (cont)                                         AR20130000404



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