IN THE CASE OF:	  

		BOARD DATE:	  17 December 2013

		DOCKET NUMBER:  AR20130005139 


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 his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he served his time in Vietnam.  He doesn't think the leadership he was under tried to work with him enough with his issues at the time.  He had 7 children and a wife who continued to leave them alone.  He didn't have anyone else to take care of his children and he couldn't take them to war with him.  

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* a copy of the statement he submitted with his request for discharge on 
13 May 1971 

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 31 January 1968, he was inducted into the Army of the United States.  

3.  On 15 August 1968, he was tried before a special court-martial.  He pled guilty and was found guilty of:

* being absent without leave (AWOL) from on or about 18 May until on or about 21 May 1968
* willfully disobeying a lawful order from a noncommissioned officer
* two specifications of willfully disobeying a lawful command from a commissioned officer
* two specifications of behaving with disrespect toward a commissioned officer

4.  On 6 March 1969, he was assigned to Company C, 1st Battalion (Mechanized), 50th Infantry in the Republic of Vietnam.  On 6 April 1969, he was returned to the United States for 30 days of compassionate leave.  

5.  A letter, dated 10 August 1970, from the State of Illinois, Department of Children and Family Services stated the applicant's six children were placed in foster homes in April 1969 and were currently placed in the department's foster homes.

	a.  The applicant had kept close contact with the agency and his children since they were placed in the homes in April of 1969.  The applicant had been seeing the children on a regular basis since May 1970.

	b.  The applicant had expressed a desire to have his children returned to him, but the return would depend on his ability to support them and provide a stable home environment for them.

6.  On 5 May 1971, court-martial charges were preferred against the applicant for being AWOL from:

* on or about 21 May 1969 to on or about 20 February 1970
* on or about 24 March to on or about 31 July 1970
* on or about 30 August to on or about 23 December 1970
* on or about 28 December 1970 to on or about 12 April 1971

7.  On 13 May 1971, he voluntarily requested discharge for the good of the service.  He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* making a statement in his own behalf
* afforded the opportunity to speak with counsel prior to making his request
* advised he might be furnished an Undesirable Discharge Certificate

8.  The applicant provided a statement in his own behalf.

	a.  He had a wife and seven children.  His wife had a habit of running off and leaving the children for 5 or more days with no one to take care of them.  After being held for 5 weeks at Fort Leonard Wood, MO, he went AWOL for 3 days to check on his children.  He returned from AWOL, received a special court-martial, and was sent to Fort Polk, LA, to complete his advanced individual training.  He was then assigned to the 1st Battalion (Mechanized), 50th Infantry in the Republic of Vietnam.  He was awarded the Purple Heart, the Combat Infantryman Badge, and the Vietnam Service Medal with 2 bronze service stars.

	b.  About 3 months after he arrived in Vietnam he received a telegram from the Red Cross informing him his wife had run off for 7 days and left the children alone and they were now in police custody.  He was granted a 30-day compassionate leave. 

	c.  He had to go to court to get his children and the judge told him if it ever happened again, he would take full custody of the children and he could never have them back again.  His wife left the house again, so he told her to leave and never come back.  He then proceeded to find someone to take care of his children.  

	d.  He remarried 7 months later and was then picked up for AWOL.  When his cousin came home from Vietnam and drowned he went AWOL again because his cousin's wife didn't know how to prepare the funeral.  He was then picked up for AWOL again.  He started having more trouble at home.  His oldest boy was running away from home and getting into trouble with the police.  He was picked up for AWOL again, returned to Fort Leonard Wood, and referred to a special court-martial.

	e.  He didn't feel he was a criminal; he hadn't committed a felony.  He stated he would take any discharge the Army would give him immediately so he could be with and raise his family.  He felt he was needed more at home than in the Army.

9.  He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he:

* would be deprived of many or all Army benefits
* might be ineligible for many or all veterans' benefits
* might be deprived of his rights and benefits as a veteran under both Federal and State laws

10.  On 6 July 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be issued an undesirable discharge.

11.  On 26 July 1971, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service with an undesirable discharge.  He completed 1 year, 6 months, and 25 days of active service that was characterized as under conditions other than honorable.  His DD Form 214 shows he had 336 days of time lost under Title 10, U.S. Code, section 972 and 399 days of time lost on or subsequent to normal expiration of term of service (lost time included both AWOL and confinement).  He was awarded the Purple Heart, the Combat Infantryman Badge, and the Vietnam Service Medal with 2 bronze service stars.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 24 March 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

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

	a.  Chapter 10, in effect at the time, stated a member who was charged with 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, at the time an Undesirable Discharge Certificate was normally furnished to an individual who was discharged for the good of the service.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his wife kept leaving his 7 children alone without supervision.  While he has provided no substantive evidence to corroborate this contention the record does show he was granted a 30-day compassionate leave on 6 April 1969 from Vietnam.  A letter, dated 10 August 1970, from the Illinois Department of Children and Family Services indicates his six children had been placed in foster homes since April of 1969.

2.  It appears he failed to return to his unit after having been granted 30 days compassionate leave.

3.  He contends his leadership didn't do enough to work with him concerning his issues at the time.  However, based on the periods of his AWOL, it appears he was present for duty only long enough to be processed for a discharge based on his situation.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

5.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The undesirable discharge he received accurately reflected his overall record of service. 

6.  His awards of the Combat Infantryman Badge and the Purple Heart were noted.  However, they are insufficient to mitigate his multiple periods of AWOL for a total of 631 days.  Therefore, his period of service is considered to be unsatisfactory and there is no basis for upgrading his 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)                                         AR20130005139



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ABCMR Record of Proceedings (cont)                                         AR20130005139



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