IN THE CASE OF:	  

		BOARD DATE:	  29 August 2013

		DOCKET NUMBER:  AR20130000942 


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, in effect, an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

	a.  He was told he would be discharged under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability), with a general discharge.  When he went to apply for benefits he was told that he had an undesirable discharge.  They mismanaged his records.  He served 5 1/2 years in the Army and served 2 1/2 years in Vietnam.  They were tricked when they arrived at Fort Meade, MD.  He served his time honorably.  He discovered the error in his discharge in 2006.  He had good jobs and did not need benefits from the Department of Veterans Affairs (VA) at the time, but he is now sick and is need of help.

	b.  That was the beginning of them cheating him out of an honorable discharge that he deserved.  He ended up at Fort Meade and he was assigned to the 6th Armored Cavalry.  He never did anything wrong.  One day they came and asked who wanted to go home.  They were never told it was an "early out."  A lot of them signed the papers and nobody told them it was not an honorable discharge.  It was a lie.  He served his time honorably and he now needs his benefits.

3.  The applicant provides:

* a self-authored letter, dated 5 December 2012
* a completed DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), dated 2 October 2012
* a letter from the Army Review Boards Agency, dated 2 November 2012

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, in pay grade E-1, on 13 December 1966 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 26 October 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 17 July to 7 September 1967.

4.  On 28 December 1967, he was convicted by a special court-martial of wrongfully appropriating a military vehicle, a value of about $847.00, on
27 October 1967.  His was sentenced to confinement at hard labor and a forfeiture of pay.

5.  He served in Vietnam from 30 March 1968 through 20 May 1970.  He was advanced to pay grade E-3 on 3 May 1968.

6.  On 28 November 1968, he accepted NJP under Article 15, UCMJ, for operating a vehicle in a reckless manner on 19 November 1968.

7.  On 9 January 1969, he was convicted by a summary court-martial of one specification of failing to go at the time prescribed to his appointed place of duty on 31 December 1968.  He was sentenced to reduction to pay grade E-1 and
60 days of restriction.

8.  On 9 September 1969, he was convicted by a special court-martial of two specifications of being AWOL from 20 to 27 January 1969 and from 28 January to 29 July 1969.  He was sentenced to reduction to the lowest enlisted grade, forfeiture of pay, and confinement at hard labor.

9.  On 9 November 1969, he was convicted by a special court-martial of one specification each of being AWOL from 11 September to 15 October 1969; resisting being lawfully apprehended by the military police on 15 October 1969; and wrongfully, willfully, and unlawfully impersonating a noncommissioned officer of the Army on 15 October 1969.  He was sentenced to confinement at hard labor and forfeiture of pay.  This sentence was suspended on 13 February 1970.

10.  As a result of his continued misconduct, his chain of command initiated separation action against him under the provisions of Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability).

11.  On 4 February 1970, The Adjutant General, based on the recommendations of a board of officers appointed to hear the applicant's case, stated the case was not conclusive enough to support a recommendation for separation from the service under the provisions of Army Regulation 635-212.  Therefore, the recommendation for the applicant's elimination was not favorably considered.

12.  He was again reported AWOL on 17 May 1970 and dropped from the rolls of his organization as a deserter on 30 July 1970.

13.  A DD Form 458 (Charge Sheet), dated 24 August 1970, was issued by the Commander, U.S. Army Overseas Processing Company A, U.S. Army Overseas Replacement Station, Fort Dix, NJ.  The applicant was charged with being AWOL from 17 May 1970 to an unknown date.

14.  A DD Form 458, dated 12 February 1971, was issued by the Commander, U.S. Army Special Processing Battalion, Fort George Meade.  The applicant was charged with being AWOL from 24 June 1970 to 3 February 1971.  Court-martial charges were preferred against him on the same day.

15.  On 12 February 1971, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and informed of the results of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

16.  On 5 March 1971, he was discharged in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by a court-martial, with an under other than honorable characterization of service and issuance of an Undesirable Discharge Certificate.  He completed 3 years, 7 months, and 8 days of net active service with 224 days of time lost.  He was also credited with 2 years, 1 month, and 20 days of foreign service in Vietnam.

17.  There is no indication the applicant applied to 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, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

	a.  Chapter 10 that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished.

	b.  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.

	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.

19.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Action to separate an individual was to be taken when, in the judgment of the commander, rehabilitation was impractical or was unlikely to produce a satisfactory Soldier.  An undesirable discharge was normally considered appropriate for individuals separated by reason of unfitness.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered.  However, the evidence of record shows during his period of service he was twice punished under Article 15 for being AWOL and misconduct.  He was further convicted by a summary court-martial and three special courts-martial for being AWOL and misconduct prior to, while in, and upon his return from Vietnam.

2.  It appears as a result of his continued misconduct, his chain of command initiated separation action against him under the provisions of Army Regulation 635-212.  However, based on the recommendation of a board of officers his elimination under the provisions of Army Regulation 635-212 was not favorably considered.

3.  Despite the favorable decision to retain him, he again went AWOL on 17 May 1970.  Upon his return, his command preferred court-martial charges against him.  He was afforded the opportunity to seek legal advice and only after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the service under the provisions of Army Regulation 635-200, chapter 10.

4.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  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.

5.  Contrary to his contention that nobody told him his discharge would not be an honorable discharge, the evidence of record clearly shows he acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He was further informed of the results of the issuance of such a discharge.

6.  Additionally, contrary to his contention that he "never did anything wrong," the evidence of record clearly shows a period of military service marred with misconduct that resulted in two instances of NJP, four instances of court-martial convictions, and an extensive history of AWOL.

7.  The evidence shows his misconduct and unsatisfactory performance diminished the quality of his service.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence that would entitle him to an upgrade of this discharge.

8.  Based on his extensive 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 also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

9.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

10.  In view of the foregoing, there is no 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)                                         AR20130000942



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ABCMR Record of Proceedings (cont)                                         AR20130000942



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