BOARD DATE:	  19 February 2014

		DOCKET NUMBER:  AR20130009495 


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 he spent over 15 months of service in the Army.  He also asked not to be sent back to Vietnam for personal reasons. 

3.  The applicant provides DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 23 April 1970 and he held military occupational specialty 76Y (Unit Supply Specialist). 

3.  On 5 November 1970, while still in training, he departed his unit in an absent without leave (AWOL) status but he returned to military control on 19 November 1970. 

4.  On 20 November 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 5 to 19 November 1970.  

5.  He arrived in Vietnam on 25 March 1971.  

6.  On 28 August 1971, he departed his unit in an AWOL status and on                28 September 1971, he was dropped from the Army rolls as a deserter.  He returned to military control on or about 20 March 1972.  

7.  On 22 March 1972, court-martial charges wee preferred against him for one specification of AWOL from 28 August 1971 to 20 March 1972. 

8.  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 this request of his own free will and 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

9.  The applicant's battalion commander recommended approval of the discharge action and stated the applicant's behavior pattern rendered him unsuitable for further military service.  He recommended an undesirable discharge. 

10.  On 19 April 1972, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-1200, chapter 10, with an undesirable discharge.  Accordingly, the applicant was discharged on 4 May 1972.

11.  His DD Form 214 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 1 year, 5 months, and 5 days of active service and he had lost time from 5 to 15 November 1970 and 28 August 1971 to 20 March 1972. 

12.  On 17 May 1982, the Army Discharge Review Board (ADRB) reviewed his discharge but found it equitable and proper.  Accordingly, the ADRB denied his petition for an upgrade of his discharge.

13.  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.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  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.  Nothing in the applicant's records shows he was forced to go AWOL or choose the discharge.  He was AWOL by choice.  After consulting with counsel, he clearly stated 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 describes. 

4.  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)                                         AR20130009495





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ABCMR Record of Proceedings (cont)                                         AR20130009495



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