IN THE CASE OF:	  

		BOARD DATE:	    5 September 2013

		DOCKET NUMBER:  AR20130001826 


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
* reinstatement of 6 days taken without a hearing

2.  The applicant states he was young and immature at the time in addition to the racism that was prevalent at the time.

3.  The applicant provides:

* Self-authored statement he titles "Statement of facts"
* Nursing notes
* Post-service college diploma and transcripts
* Letter from the Assistant Director of Prisoner Education Program related to correspondence courses

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 was born on XX November 19XX and he enlisted in the Regular Army at 17 years of age on 30 November 1970 and he held military occupational specialty 71B (Clerk Typist).  He served in Vietnam from 1 December 1971 to 25 June 1972. 

3.  He was awarded or authorized the Vietnam Service Medal, Vietnam Campaign Medal with 1960 Device, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 4 August 1971, in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being found sleeping upon his post as a sentinel.  

5.  On 17 May 1972, his command preferred court-martial charges against him for various offenses committed during May 1972:

* two specifications of stealing military payment certificates, the property of other Soldiers in Vietnam
* one specification of communicating a threat to both Soldiers to report them for possession of marijuana, with intent to unlawfully obtain military payment certificates
* two specifications of conspiring with other Soldiers to commit larceny of military payment certificates, the property of Soldiers
* one specification of fraud by impersonating an agent by wearing the uniform of a policeman to defraud two Soldiers

6.  On 17 May 1972, the applicant consulted with legal counsel and he was advised 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 of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.   In his request for discharge he indicated that:

* he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person
* he did not desire any further rehabilitation under any circumstances because he had no desire to perform further service
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions
* he acknowledged he understood that if the 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
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State law
* he elected not to submit a statement on his own behalf

7.  On 30 and 31 May and 1 June 1972, his immediate, intermediate, and senior commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.  

8.  On 13 June 1972, consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge for the good of the service - in lieu of trial by a court-martial in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  

9.  On 19 June 1972, he departed his unit in an absent without leave (AWOL) status but he returned on 25 June 1972.  

10.  On 31 July 1972, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year, 7 months, and 25 days of active service and he had 7 days of lost time from 19 to 25 June 1972. 

11.  On 25 August 1977, the Army Discharge Review Board (ADRB) reviewed his discharge but found it proper and equitable.  As such, the ADRB denied his petition for an upgrade of his discharge. 

12.  He provides a self-authored statement titled "Statement of facts" wherein he describes his entry into the Army at a young age and his acceptance of the discharge in lieu of a court-martial.  He contends that he was in effect denied due process because the military did not make sure he fully understood the implication of his decision.  This, coupled with the fact he was plagued with drug abuse and due to his color and a threat of a long-term prison term led him to make the choice that he made.  Additionally, none of the positive aspects of his military service was considered.  Furthermore, he is entitled a presidential pardon as provided by Presidential Proclamation 4313.  

13.  He also submitted:

	a.  Several DD Forms 640 (Nursing Notes), dated 19 June of an unknown year with the words "seems to show a immature personality" highlighted. 

	b.  A post-service diploma with transcripts showing completion of an Associate in General Studies. 

	c.  A letter, dated 1 December 1999, from the Assistant Director of Prisoner Education Program related to correspondence courses and/or directed study policy. 

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 under other than honorable conditions discharge is normally considered appropriate.

	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. 

15.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service would be retained.

16.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The DD Form 214 is a summary of a Soldier's most recent period of continuous active duty and provides the individual with documentary evidence of their military service.  Item 26a (Non-Pay Periods Time Lost) of the version in effect at the time shows time lost under Title 10, U.S. Code, section 972.  The regulation requires that the dates of time lost during the current enlistment will be entered on the DD Form 214.  For enlisted personnel, the inclusive periods of time lost to be made good under Title 10, U.S. Code, section 972, and periods of non-inclusive time after expiration of date of service will be entered.  Lost time under Title 10, U.S. Code, section 972 is not creditable service for pay, retirement, or veteran’s benefits; however, the Army preserves a record of it (even after it has been made up) to explain which service between the date of entry on active duty and the date of separation is creditable service.  

DISCUSSION AND CONCLUSIONS:

1.  With respect to the character of service:  

	a.  The applicant was charged with the commission of an offense 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.  The applicant 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.

	b.  The applicant was afforded the opportunity to consult with counsel and when he did so, he understood the implications of his actions.  He could have elected a court-martial if he believed he was innocent. 

	c.  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 also renders his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge to either an honorable or a general discharge.

2.  With respect to the 6 days taken without a hearing, it is unclear what the applicant is referring to.  However:

	a.  It appears he may be referring to 7 days of lost time reported on his 
DD Form 214 as a result of being AWOL from 19 June to 25 June 1972.  In the absence of evidence to the contrary, it must be presumed this entry is correct.  He provides no evidence to show this entry is in error.  

	a.  By law and regulation, periods of AWOL or confinement are considered lost time and the time is not creditable service for pay, retirement, or veteran’s benefits.  The lost time is required to be listed on the DD Form 214 even if the periods of lost time were made up.  Since the lost time entries are correctly shown on his DD Form 214, he is not entitled to the requested relief.

3.  With respect to his arguments:

	a.  The applicant's service in Vietnam as well as awards of the Vietnam Service Medal and Vietnam Campaign Medal were carefully considered.  However, they do not outweigh his extensive history of misconduct as evidenced by the charges preferred against him. 

	b.  Nothing in the applicant's record shows he was forced to choose the discharge.  He committed theft, larceny, conspiracy, and fraud by choice.  When presented with his options, he willingly chose the discharge.  He could have elected trial by a court-martial if he felt he was innocent of the charge.  

	c.  Contrary to his contention that he was entitled to a pardon, Presidential Proclamation 4313 was a program related to the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL-related incidents between August 1964 and March 1973. 

	d.  Although the applicant was 17 years of age at the time of his enlistment, he was 18 years of age at the time he committed his offenses.  Yet, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

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)                                         AR20130001826





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ABCMR Record of Proceedings (cont)                                         AR20130001826



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