IN THE CASE OF:  

		BOARD DATE:  13 August 2013

		DOCKET NUMBER:  AR20130001187


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 discharge characterization.

2.  The applicant states:

* he received an Honorable Discharge from the U.S. Navy in 1969
* he then enlisted in the U.S. Army, where after basic training he was sent to the Republic of Vietnam
* 2 months prior to his tour end date, he was charged with the sale of narcotics – he was tried and acquitted of those charges
* he was reassigned to Fort Knox, KY, where he inquired about a possible discharge but no one would help him
* at no time did anyone ever ask him what he wanted or how he felt – he returned from Vietnam with a broken heart, ripped apart and hurt, his mind blown away
* he went absent without leave (AWOL) for 2 months and then turned himself in at Fort Bliss, TX, where he was processed for discharge
* he received an under other than honorable conditions discharge, which he has lived with for 40 years
* he's learned to forgive his accusers for their wrongdoing and the pain they caused him
* he was a young man who was scared and ripped apart – when he's gone he wants his family and grandchildren to know he served his country with honor

3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), for the periods ending 3 July 1969 and 3 July 1972.

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.  On 17 February 1970, after previous enlisted service in the U.S. Navy, the applicant enlisted in the Regular Army and entered active duty for the purpose of completing his initial entry training.  

3.  On 14 August 1970, he received nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from on or about 18 July 1970 through on or about 13 August 1970.

4.  On or about 29 September 1970, he completed his initial entry training and was awarded military occupational specialty 11D (Armored Reconnaissance Specialist).  

5.  On 10 December 1970, he received NJP, under the provisions of Article 15 of the UCMJ, for absenting himself from his unit from on or about 28 October 1970 through on or about 9 December 1970.

6.  Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam from on or about 13 December 1970 through on or about 27 December 1971.  During this period of service, he was assigned to 3rd Squadron, 17th Cavalry Regiment, in the Republic of Vietnam.  

7.  Item 44 (Time Lost under Section 972, Title 10, United States Code (USC) and Subsequent to Normal Date ETS (Expiration Term of Service)) of his         DA Form 20 shows he was reported by his unit as AWOL on the following occasions:

* from on or about 11 July 1970 through on or about 11 July 1970
* from on or about 18 July 1970 through on or about 12 August 1970
* from on or about 4 May 1972 through on or about 1 June 1972
* from on or about 2 June 1972 through on or about 22 June 1972

8.  His discharge packet is not available for review; however, his record contains a DD Form 214 that shows he was discharged on 3 July 1972, in the rank/grade of private/E-1, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  It further shows he received an under other than honorable conditions discharge.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, the 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.

   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 for an upgrade of his discharge characterization was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge; however, his record contains a DD Form 214 that shows he was discharged on 3 July 1972, under the provisions of Army Regulation 635-200, chapter 10.  It appears he was charged with the commission of offense(s) 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.  

3.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

4.  The applicant contends his service was "honorable."  The evidence of record shows he twice received NJP for being AWOL from his assigned unit, and he was AWOL on at least 2 other occasions.  This conduct calls into question his military bearing and level of self-discipline; further, such conduct is not "honorable."  It appears his actions warranted the court-martial charges that resulted in his discharge.

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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130001187



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