BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130008640 


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 upgrade of his undesirable discharge.

2.  The applicant defers to counsel. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel states there are mitigating circumstances to explain the applicant's period of absence without leave (AWOL).  Specifically, his wife had just given birth to a child and he had to run a small business so the family would have a place to stay.  Additionally, his father had just been involved in a motorcycle accident and was bedridden.  His family's situation was not stable when he returned home from Vietnam and the AWOL can at least partially be explained by the applicant's need to care for his family during this period.

2.  Counsel also states the applicant has proven to be an outstanding citizen in the years since his military service ended.  He has been married for 43 years and raised two children, both of whom have served in the military.  He retired from the Tennessee Valley Authority (TVA) in 2010 after 21 years of service, where he proved himself to be a leader.  His supervisor stated the applicant was an excellent worker and that he "treats others as he would like to be treated."  A coworker noted that he "left an everlasting impression" on students who came through a work training program.

3.  In addition, he was also a leader in his community.  He has been involved in many community activities, including teaching athletics to children, high school kids, and boy scouts.  He and his wife are volunteers at the Illinois Department of Natural Resources, Mermet Lake and Fish Wildlife Area.  In that role he teaches children about the outdoors and gives tours to different groups that visit the area.  He also helps elderly people make repairs to their homes and cars and assisted in relief efforts after southern Illinois was hit with a string of weather-related disasters.  He is now suffering from several conditions that may be related to his Vietnam service.  He recognizes that he made a terrible choice when he was in the military, but his family needed him badly at that time.  In short, he has suffered long enough.  The applicant respectfully requests that the Board upgrade the character of his discharge.

4.  Counsel provides the applicant's personal statement and three letters of support. 

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 19 May 1970, he was inducted into the Army of the United States.  He was awarded military occupational specialty 95B (Military Policeman).  The highest rank/grade he attained was specialist four/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows his service in the Republic of Vietnam began on 15 December 1970.

4.  On 11 March 1971, he reenlisted for 3 years.

5.  His record shows he was authorized ordinary leave for 30 days effective on or about 21 April 1971.

6.  On 8 September 1971, he accepted nonjudicial punishment for being AWOL from his military police unit in Vietnam from 1 June to on or about 26 August 1971. 
7.  On 11 February 1972, court-martial charges were preferred against him for with being AWOL from his unit from 13 September 1971 to on or about 1 February 1972.

8.  On 15 February 1972, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial for an offense punishable by a bad-conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  

9.  After consulting with counsel, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

	a.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.

	b.  He further acknowledged he understood that if his discharge request were accepted, he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

	c.  He waived his rights.  He indicated that a statement in his own behalf was submitted.  However, this statement is not available for the Board's review.  

10.  On 16 February 1972, his commander recommended the applicant be discharged for the good of the service.  He stated the applicant's negative attitude toward honorable service indicated that the best interest of the Army would be served by approval of the applicant's request.

11.  On 17 February 1972, the separation authority approved his discharge under provisions of chapter 10, Army Regulation 635-200.  He directed the applicant be given an Undesirable Discharge Certificate.

12.  On 23 February 1972, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, with his service characterized as under other than honorable conditions.  He completed a total of 1 year, 1 month, and 20 days of net active service.  He had 227 days of time lost.

13.  There is no evidence he sought hardship assistance from his chain of command or other sources.

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

15.  He provides three letters of support.

   a.  A former supervisor stated he found the applicant to be consistently helpful, tackling all assignments with dedication.  He stated the applicant was honest in his communication, treated others as he would like to be treated, and was a good person who put others before himself.
   
   b.  A former co-worker stated the applicant was an honest and hardworking individual.  The applicant left a lasting impression on all the students that came through the training program.
   
   c.  A site superintendent at the Mermet Lake Fish and Wildlife Area stated he had known the applicant for over 35 years and he had always been known as an upstanding member of their small community.  He and his wife donated many hours to volunteer projects at Illinois Department of Natural Resources, Mermet Lake Fish and Wildlife Area.  He also spent many hours promoting, educating, and explaining the importance of environmental protection and enhancement to youth and adults alike.
   
16.  He states in his self-authored statement that when he was drafted he was young and impressionable and made some bad choices, particularly his discharge.  He stated that at the time they had just had their first child when he came home on leave.  His dad was involved in a motorcycle wreck, crushing his foot, leaving him bedridden.  There was a small business to run and at the time his wife and newborn daughter had no place to stay.  He made the decision to stay home and help his family.  At the time he thought it was the right decision but now he knows it was the wrong decision.  He has been married to the same woman for 43 years.  They have a daughter who is a career Soldier, obtaining the grade of E-7.  His son served 5 years in the Navy.  In 2010, he retired after 21 years of service for the TVA.  Prior to that, he worked at another company for 16 years.  He lists numerous activities with which he had been involved, including volunteering to help elderly and disabled people make repairs on their homes and vehicles.  He also helped others after natural disasters hit the area by cutting and removing trees and filling sandbags.


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

	a.  Chapter 10 of the version in effect at the time provided that a Soldier 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, type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7a states 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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

   c.  Paragraph 3-7b states 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.  His record shows he reenlisted in March 1971, went on 30 days leave in April 1971, received NJP for being AWOL (for more than 30 days), and went AWOL again.

2.  Court-martial charges were preferred against him for being AWOL.  He had 227 days of time lost.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the Uniform Code of Military Justice.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  The letters of support he provided indicate he is a positive member of society.  However, this does not mitigate the misconduct that led to his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable or 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)                                         AR20130008640



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ABCMR Record of Proceedings (cont)                                         AR20130008640



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