IN THE CASE OF: 

		BOARD DATE:	    16 January 2014

		DOCKET NUMBER:  AR20130008974 


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, in effect, an upgrade of his undesirable discharge to a general discharge.

2.  The applicant states he is a model person; he made a mistake when he was young and it has come back to haunt him.  He was absent without leave (AWOL) after he left Vietnam.  He was led to believe that once he turned himself in all he had to do was spend 6 months in the stockade.  He was told his discharge would be automatically upgraded to a general discharge within 6 months.

3.  The applicant provides no additional evidence.

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 enlisted in the Regular Army on 1 August 1968 when he was age 19.  He held military occupational specialty 76A (Supplyman).  On 3 December 1968, he was assigned to the 223rd Supply and Service Company, Vietnam.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

* 11 March 1969, for two specifications of failing to obey a lawful order
* 21 July 1969, for failing to obey a lawful order

4.  On 2 October 1969, he was convicted by a special court-martial of two specifications of failing to obey a lawful order and three specifications of behaving in a disrespectful manner toward three different superior commissioned officers.  He was sentenced to 4 months in confinement, a forfeiture of $82.00 a month for 6 months, and reduction to private/E-1.  

5.  On 22 October 1969, his sentence was approved but the confinement for 4 months was suspended until 2 February 1969, at which time it would be remitted without further action unless vacated sooner.

6.  On 23 December 1969, his suspended sentence was vacated and he was ordered to confinement at the U.S. Army Vietnam Installation Stockade.

7.  On 21 January 1970, he departed Vietnam enroute to his assignment to the U.S. Army Replacement Detachment, Fort Benning, GA.

8.  On 25 February 1970, after failing to report to Fort Benning, GA, he was reported as AWOL from his assigned unit.  On 24 March 1970, he was dropped from the rolls as a deserter.

9.  On 27 May 1970, he was apprehended by civil authorities and returned to military control in Beaumont, TX.  On 2 June 1970, he was returned to Fort Polk, LA, and assigned to the Personnel Control Facility (PCF).

10.  On 27 July 1970, he was reported as AWOL from his assigned unit.  On 16 December 1970, he was returned to military control and assigned to the PCF, Fort Polk, LA.

11.  On 26 January 1971, he was reported as AWOL from his assigned unit.  On 27 June 1971, he was returned to military control and assigned to the PCF, Fort Polk, LA.

12.  On 13 July 1971, court-martial charges were preferred against him for three specifications of being AWOL from 25 February to 27 May 1970, 27 July to 16 December 1970, and from 25 January to 27 June 1971.

13.  On 17 August 1971, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, and of the procedures and rights available to him.

14.  Following consult with legal counsel, the applicant 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.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration and he could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life. 

15.  Along with his request for discharge he submitted a statement wherein he stated, in effect, that he had been AWOL from the Army three times for a total of 13 and 1/2 months.  He received two Article 15s and one special court-martial.  He was drafted for 2 years which had already elapsed.  Of these 24 months, he had 23 months of good time.  He could not adjust to the military way of life as demonstrated by his multiple periods of AWOL.  Therefore, he was requesting a discharge for the good of the service.

16.  On 26 August 1971, his immediate commander recommended approval of his request for a discharge.  The commander stated he further recommended the issuance of an Undesirable Discharge Certificate in view of the discreditable nature of his service. 

17.  On 27 August 1971, his senior commander strongly concurred with the immediate commander’s recommendation.  He stated the applicant’s disciplinary history showed he had committed frequent incidents of a discreditable nature with military authorities.  He recommended the issuance of an Undesirable Discharge Certificate.



18.  On 30 August 1971, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 1 September 1971, he was discharged accordingly.

19.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions characterization of service.  He completed 1 year, 11 months, and 13 days of net active service with 414 days of lost time due to being AWOL and in confinement.

20.  On 31 January 1974 and 8 January 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and appropriate.

21.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  At the time, an Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

22.  Army Regulation 635-200, 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.

23.  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 evidence of record confirms 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.  

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  

3.  Notwithstanding his contention that he was told his discharge could be automatically upgraded after 6 months, the Army has never had a policy of automatically upgrading discharges.

4.  The applicant contends that his discharge should be upgraded because he was young and made mistakes at the time of his service.  Records show that he was almost 22 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  His record of service shows he received NJP on two occasions for disobeying a lawful order on three separate occasions and he was convicted by a special court-martial for failing to obey a lawful order on two additional occasions and for being disrespectful to commissioned officers on three separate occasions.  In addition, during his service he went AWOL on three separate occasions and had a total of 414 days of lost time for being AWOL or in confinement.  

6.  Based on this record of misconduct, 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 honorable or 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 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)                                         AR20130008974



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ABCMR Record of Proceedings (cont)                                         AR20130008974



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