IN THE CASE OF:	  

		BOARD DATE:	  22 October 2013

		DOCKET NUMBER:  AR20130004471 


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 reconsideration of his previous application for an upgrade of his under conditions other than honorable discharge to a general discharge.  He also questions the amount of time he spent in the Republic of Vietnam which is reflected in item 22c (Foreign and/or Sea Service) of his        DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

2.  The applicant states, in effect:

   a.  He arrived in the Republic of Vietnam in October 1968 and departed on leave in the middle of February 1969.

   b.  He believes his discharge should be upgraded for saving several Soldiers from being shot by one of their own men.

   c.  He was lied to, misrepresented, and coerced into signing paperwork by a superior officer.

   d.  He was told after six months his discharge would be upgraded to an honorable discharge. 

3.  The applicant provides a self-authored statement and a copy of his DD Form 214.


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.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR1999032837, on 12 January 2000.

3.  The applicant provides new arguments which will be considered by the Board.  The applicant states he left for the Republic of Vietnam the first week of October 1968 and he didn’t leave until the middle of February 1969.  The applicant provides a copy of his DD Form 214 that shows he placed the number "4" below item 22c to indicate he served 4 months and 25 days vice 2 months and 25 days in the Republic of Vietnam.

4.  The applicant's records show he was inducted into the Army of the United States on 30 January 1968, and he held military occupational specialty 31M (Radio Relay and Carrier Attendant).

5.  On 17 July 1968, he pled guilty and was convicted by a special court-martial of being absent from his unit for the period 5 June to 4 July 1968.  

6.  Records show the applicant arrived in the Republic of Vietnam on 18 October 1968.  He was assigned to Company A, 125th Signal Battalion, 25th Infantry Division.

7.  Letter Orders 1-113, issued by Headquarters, 25th Infantry Division, dated       11 January 1969, authorized him 21 days ordinary leave (for compassionate reasons) to visit the continental United States effective 12 January 1969.  There is no evidence which shows he ever returned to the Republic of Vietnam.

8.  On 4 June 1969, at Fort Meade, Maryland, he pled guilty and was convicted by a special court-martial of being absent from his unit for the period 12 February to 6 May 1969.  

9.  On 9 January 1970, charges were preferred against the applicant for once again absenting himself from his unit for the period 19 June to 23 December 1969.

10.  Evidence shows the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  On 6 January 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a discharge under other honorable conditions, and the procedures and rights available to him.  

11.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was advised of the implications attached to it and that if his request for discharge was accepted, he may be discharged under other than honorable conditions, and furnished an Undesirable Discharge Certificate.  He understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he may expect to encounter substantial prejudices in civilian life by reason of an undesirable discharge.

12.  The DD Form 214 he was issued 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 under other than honorable conditions discharge.  He completed 1 year, 2 months, and 13 days of creditable active military service with 285 days of lost time.  This form further shows he completed 2 months and 25 days of service in the Republic of Vietnam.

13.  There is no evidence in the applicant's records nor did he provide any evidence to support his contentions that he was lied to, misrepresented, and coerced into signing paperwork by a superior officer, that he saved several Soldiers from being shot by one of their own men, or that he was told his discharge would be upgraded to an honorable discharge after six months.

14.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
 
15.  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, a discharge under other than honorable conditions is normally considered appropriate.

16.  Army Regulation 635-200, 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 contention that his discharge should be upgraded to a general discharge was carefully reconsidered and determined to be without merit.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  However, in the applicant's case, this clearly is unwarranted. 

3.  There is no evidence in the applicant's records and the applicant provides no evidence to show he served in the Republic of Vietnam for a period other than what is indicated on his DD Form 214.  

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge 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.

5.  The applicant's record of service shows he was punished numerous times under the UCMJ which resulted in 285 days of lost time.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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 to amend the decision of the ABCMR set forth in Docket Number AR1999032837, dated 12 January 2000.




      _______ _   __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)                                         AR20130004471





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ABCMR Record of Proceedings (cont)                                         AR20130004471



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