IN THE CASE OF:	  

		BOARD DATE:  30 January 2014

		DOCKET NUMBER:  AR20130008490 


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 undesirable discharge.

2.  The applicant states:

* during his service in Vietnam, he began using narcotics; he tested positive for heroin and he was sent to a detox facility
* upon completing the program he was sent to Fort Hood, TX but he received notification of his grandfather's illness
* he requested leave but it was denied; so, he decided to leave in an absent without leave (AWOL) status
* he turned himself in and he was sent to Fort Meade, MD, for processing
* while at Fort Meade, his platoon sergeant told him to go home and that he would come for him; he stayed home too long and he was again reported AWOL
* as soon as he became aware of being in an AWOL status, he reported back to Fort Meade where an attorney advised him of his options
* he knows that he made some bad decisions, many of which were caused by the rigors of combat in Vietnam
* he has since worked hard to overcome those difficulties and become a productive citizen
* he has stopped working due to health problems that are directly attributed to Agent Orange 
* while he accepts his share of the blame, he believes the character of service unjustly punished him for his service to the country 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and a character reference letter. 

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 enlisted in the Regular Army on 4 February 1969 and he held military occupational specialty 36K (Wireman).  He served in Germany from on or about 1 August 1969 to 13 February 1970.  

3.  On 3 February 1970, he was honorably discharged for the purpose of immediate reenlistment.  He was issued a DD Form 214 that captured this period of active service.  

4.  He executed a reenlistment in the RA on 4 February 1970.  He subsequently served in Vietnam from 15 April 1970 to on or about 19 November 1971.

5.  The highest rank/grade he attained was specialist four/E-4.  He was awarded or authorized the National Defense Service medal, Vietnam Campaign Medal, Vietnam Service Medal, and the Army Commendation Medal with "V" Device. 

6.  On 25 February 1971, in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully appropriating a 1/4-ton truck, property of the United States. 

7.  On 27 May 1971, also in Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ for disobeying a lawful order to help clean a barrel of ammunition and get it ready for firing.  

8.  On 3 December 1971, he departed his Fort Hood unit in an AWOL status and on 10 January 1972, he was dropped from the rolls as a deserter.  He was apprehended by civil authorities on 19 March 1972 and he was transferred to Fort Meade, MD, where he was placed in pre-trial confinement. 

9.  On 10 April 1972, he again departed his Fort Meade, MD, unit in an AWOL status.  He returned to military control on 17 April 1972.  

10.  On 20 April 1972, court-martial charges were preferred against him for two specifications of being AWOL from 3 December 1971 to 19 March 1972 and 
10 to 17 April 1972.  

11.  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 the procedures and rights available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated:

* he was making the request of his own free will and he 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 lesser-included offenses that also authorized the imposition of a bad conduct discharge or a dishonorable discharge
* he acknowledged he understood that if his discharge request were approved he could be deprived of many or all Army benefits and 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 laws
* he elected not to submit a statement on his own behalf

12.  The separation approval memorandum is not filed in his records.  However, his records contain a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 2 years, 9 months, and 28 days of active service during the period under review and he had lost time from 3 December 1971 to 
25 April 1972. 
13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  He provides a character reference letter, dated 13 April 2013, from his spouse who states the upgrade would mean everything to the applicant.  She adds that he still has a hard time talking about being in Vietnam.  He is currently in need of medical benefits.  His valor award reflects how much he is proud of serving his country. 

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

	a.  Chapter 10 provides 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.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his undesirable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  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.  In the absence of evidence to the contrary it is presumed that the applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial and that 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.

3.  He acknowledges he was AWOL by choice.  After consulting with counsel, he requested a discharge and he clearly acknowledged he was aware of the implications of his decision and that he had not been coerced.  He could have elected a trial by a court-martial if he felt he was innocent of the charges or if he had extenuating circumstances as he now alleges. 

4.  His service in Vietnam and his valor award are also noted.  However, neither action mitigates his extensive history of AWOL.  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 rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of 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)                                         AR20130008490



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ABCMR Record of Proceedings (cont)                                         AR20130008490



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