IN THE CASE OF: 

		BOARD DATE:	  4 February 2014

		DOCKET NUMBER:  AR20130009567 


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, the brother of a deceased former service member (FSM), requests an upgrade of his late brother's under other than honorable discharge to an honorable discharge.

2.  The applicant states:

   a.  His brother showed serious symptomatic problems after his service in Vietnam.  Prior to the war where he had dedicated his service and training, his records indicate he was a good asset and honorable.  His brother passed away from a courageous battle with lung and esophagus cancer at the young age of 63 years on 1 June 2012.  His brother has been greatly missed since his passing.

   b.  Their mother, who is 86 years of age, along with his brother's family, loved ones, and very close friends have not yet had any ceremonial services for him in hopes of seeing if they can honor his last request which is to be buried at the Maine National Veterans Cemetery.  There are no proper "good-byes" of someone being put to rest and this creates a sad situation for the mourning family and loved ones.

   c.  His brother made attempts to upgrade his discharge to honorable once he had been diagnosed as terminally ill; however, the severity of his symptoms and his illness progressing much faster than any of them expected leaves him with attempting to carry through his brother's wishes.  They realize the only way to have his brother buried at the Maine National Veterans Cemetery is to have his discharge upgraded to honorable.  They feel this is the only way they can ever feel a true place for his remains to rest for all eternity.

   d.  He is enclosing letters, documents, and records gathered since he began his search to help fill his brother's quest.  The recorded information and details should show his brother's character while serving in Vietnam.  His own finding exemplifies that his brother was a young man who enjoyed the challenges of basic training, did very well in the service, and truly enjoyed (and always reflected upon) his experiences in jump school.  The documents detail that his brother did very well and fought with honor for the country up until and through Vietnam.

   e.  He recalls his brother's return from Vietnam and remembers thinking he was a different young man returning home post war.  He had always looked up to his brother and knew something was just not right once he had come home.  He believes there were post-traumatic syndrome factors as well as drug usage that were changing and altering his brother's decisions and demeanor.  At 15 years of age he was old enough to see the transition and the unfortunate negative changes his brother had begun to exhibit.

   f.  His brother served at a crucial time in Vietnam.  He was a proud, dedicated, and enthusiastic Soldier most of the time.  The records indicate how his brother made some mistakes and very poor decisions including his admission of drug usage.  He did read in one statement that his brother was not suitable for garrison life.  He believes this military assessment was an accurate portrayal of his brother's unfortunate post-war symptoms, abilities, and characteristics which became a lifelong battle for him.

   g.  Since his brother's return from the war his depression and mental instability deprived him of the opportunity to be a supporting daily model figure. His disabling condition affected his ability to complete daily living tasks, hold vocational opportunities, and enjoy recreation.  Luckily, his brother enjoyed spending his time on solo activities.  His mother and father faced the unrecognizable changes in their son.  His siblings along with himself felt they had lost their brother upon his return.  

   h.  His family is requesting his brother's discharge be upgraded so they can honor his, as well as their, last wishes.  They feel the time their brother served, not only in the military but also in the nearly fifty years he has had to deal with the result from war, should warrant his wish to be buried with others of honor in the Maine National Veterans Cemetery.
3.  The applicant provides copies of the FSM's military records, his birth certificate, the FSM's death certificate, and two letters from the Army Review Boards Agency and the White House.

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 FSM enlisted in the Regular Army on 29 June 1967 for 3 years.  He completed training and was awarded military occupational specialty 36K (wireman).  He served in Vietnam from 17 July 1968 through 16 July 1969.  He was advanced to pay grade E-3 on 13 July 1969.  

3.  The applicant provided copies of and the FSM's records contain orders which show the following:

   a.  On 6 March 1969, the FSM was convicted by a summary court-martial of one specification of willfully disobeying a lawful order on 30 January 1969.  He was sentenced to a reduction to pay grade E-2.  On 7 March 1969, the convening authority approved the sentence and he was reduced to pay         grade E-2.

   b.  On 26 November 1969, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 24 August 1969 through 5 November 1969.  He was sentenced to reduction to pay grade E-1, a forfeiture of pay, and 30 days of confinement at hard labor.  On 28 November 1969, the convening authority approved the sentence, but for confinement, and ordered it executed.  On 28 January 1970, the convening authority vacated the suspended sentence of confinement and ordered it duly executed.  The FSM was reduced to pay grade E-1 on 28 November 1969.

   c.  On 19 February 1970, he was convicted by a summary court-martial of two specifications of willfully disobeying a lawful order on 27 and 28 January 1970.  He was sentenced to 15 days confinement at hard labor.  On 19 February 1970, the convening authority approved the sentence and ordered it executed.

   d.  On 25 April 1970, he was convicted by a summary court-martial of one specification of failing to go to his appointed place of duty on 18 April 1970.  He was sentenced to a forfeiture of pay and 15 days of confinement at hard labor.  On 25 April 1970, the convening authority suspended the sentence to confinement.  On 6 May 1970, the sentence was set aside.

4.  A DD Form 458 (Charge Sheet), dated 19 April 1971, was issued by the Commander, U.S. Army Personnel Control Facility, Fort Sill, OK.  The FSM was charged with two specifications of being AWOL from 2 May 1970 through 23 January 1971 and from 8 February 1971 through 17 April 1971.

5.  On 14 May 1971, after consulting with counsel, the FSM requested a voluntary discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.    

6.  In his statement, dated 14 May 1971, the FSM stated:

   a.  He entered active duty in the Army on 29 June 1967 for a 3-year tour.  He was presently 22 years of age and although he entered the Army to better himself, he didn't really feel that he had been successful.  He served a tour in Vietnam and managed to stay out of trouble while there, but he was unable to adjust to garrison life at Fort Sill.  He had received three summary courts-martial while there.  

   b.  He had served 2 years of good time in the military, but at the present time he was facing a bad conduct discharge that could be imposed by a special court-martial for two specifications of AWOL.  He did not feel that he could remain in the service.  He had a job waiting for him in his home state and felt that the best thing for him to do was to start over in civilian life and become a productive member of society.  

   c.  While in Vietnam he did use drugs and they contributed greatly to his later problems with the military upon his return to the Continental United States.  He had previously been hospitalized for treatment and at the present time he believed he had been rehabilitated.  He had participated in the drug seminars there at the stockade and did not feel he would again become dependent on drugs.  With his prior record of convictions and the documented record of drug abuse he did not feel there was any place in the military left for him.  He felt that he had served his obligation to the Army through his tour of duty in Vietnam and his good time and requested his resignation be accepted.

7.  On 17 May 1971, the FSM's company commander recommended approval of the FSM's request with the issuance of an Undesirable Discharge Certificate.

8.  On 4 June 1971, the appropriate separation authority approved the FSM’s requests under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

9.  On 9 June 1971, the FSM was discharged accordingly.  His service was characterized as under conditions other than honorable.  He was credited with completion of 2 years, 9 months, and 29 days of net active service and 402 days of time lost.

10.  On 24 July 1981, the Army Discharge Review Board denied the FSM'S request for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  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’s contentions and the documents he submitted were carefully considered.

2.  The evidence of record shows the FSM was convicted by four summary courts-martial for misconduct and AWOL.  Upon return from a lengthy period of AWOL, the FSM was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.

3.  After consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  He also acknowledged he be furnished an Undesirable Discharge Certificate.  As a result, on 9 June 1971, he was discharged accordingly.

4.  By his own admission at the time, the FSM stated he was unable to adjust to garrison life there at Fort Sill and did not feel he could remain in the service.  He had a job waiting for him in his home state and felt that the best thing for him to do was to start over in civilian life and become a productive member of society.  He used drugs while in Vietnam, been hospitalized for treatment, and believed he had been rehabilitated.  

5.  While the Board is sympathetic of the applicant's request, he provided no evidence or a convincing argument to show his brother's discharge should be upgraded and his brother's military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows the FSM's misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

6.  The FSM's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting the applicant the requested relief.

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)                                         AR20130009567





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ABCMR Record of Proceedings (cont)                                         AR20130009567



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