IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010131


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 under other than honorable conditions discharge.

2.  The applicant states:

* while serving in the Republic of Vietnam, he was robbed by two sergeants
* the sergeants saw him at a show he was attending that night, said they wanted to talk to him, then while one was talking to him, the other hit him in the head from behind
* when he woke up, he was in the jail house
* he was mistreated and didn't have a lawyer 

3.  The applicant provides his Department of Veterans Affairs (VA) Form          10-10EZ (Application for Health Benefits).

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 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 10 January 1968.  He completed his initial entry training and was awarded military occupational specialty 70A (Clerk).  

3.  On 27 March 1968, during his initial entry training at Fort Knox, KY, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for displaying dereliction in the performance of his duties, on or about 25 March 1968. 

4.  He served in the Republic of Vietnam from on or about 31 October 1968 through on or about 28 November 1969. 

5.  On 30 April 1969, before a special court-martial in the Republic of Vietnam, he was found guilty of two specifications of a single Charge of wrongfully possessing marijuana and other narcotics, on or about 10 March 1969.

6.  On 4 August 1969, before a special court-martial in the Republic of Vietnam, he was found guilty of:

* a single specification of the Charge of assaulting a senior noncommissioned officer with a dangerous weapon, with intent to produce grievous bodily harm, on or about 16 June 1969
* a single specification of the Charge of wrongfully possessing a dangerous weapon, on or about 16 June 1969  

7.  On 2 November 1969, he accepted NJP under the provisions of Article 15 of the UCMJ, for being absent without leave (AWOL) from his unit from on or about 28 October 1969 through on or about 1 November 1969.

8.  On or about 28 November 1969, upon his return to the continental U.S.  (CONUS) from the Republic of Vietnam, he was assigned to the 384th Replacement Company at Fort Hood, TX.

9.  On 11 December 1969, he was apprehended by the St. Louis Police Department, St. Louis, MO, for riding in a stolen vehicle and carrying a concealed shotgun.

10.  On 20 February 1970, he accepted NJP under the provisions of Article 15 of the UCMJ, for being AWOL from his unit from on or about 3 January 1970 through on or about 3 February 1970.
11.  On 24 August 1970, he accepted NJP under the provisions of Article 15 of the UCMJ, for leaving his post before being properly relieved on or about          16 August 1970.

12.  On 23 September 1970, his immediate commander initiated his bar to reenlistment.  

13.  On or about 1 December 1970, court-martial charges were preferred against him for three violations of the UCMJ, for being AWOL, having an unregistered weapon, and committing larceny.

14.  On 23 December 1970, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

15.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

16.  The separation authority approved his request for discharge and directed he be issued an Undesirable Discharge Certificate.

17.  On 17 February 1971, his bar to reenlistment was approved.

18.  On 19 February 1971, he was discharged accordingly in the rank/grade of private/E-1.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 2 years, 9 months, and 14 days of total active service with an extensive period of lost time due to AWOL and confinement.  

19.  On 16 November 1972, the Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge.

20.  On 23 September 1977, the ADRB reconsidered and denied his request for an upgrade of his discharge under the Department of Defense (DOD) Discharge Review Program (Special) (DOD SDRP).

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

   a. 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.

   b. 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.

   c. Chapter 10 of that regulation provides, in pertinent part, 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.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.

22.  On 4 April 1977, DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 28 March 1973.  In the absence of compelling reasons to the contrary, this program, known as the DOD SDRP, required that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems, which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge would also be considered upon application by the individual.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is an insufficient basis to grant his request.  As his rationale for requesting an upgrade he contends he was mistreated and did not have the benefit of counsel during his discharge proceedings.  The evidence of record does not support this contention.

2.  The evidence of record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  In lieu of trial by court-martial, he voluntarily requested to be discharged from the Army.  

3.  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.  

4.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evidence shows he benefitted from the advice of counsel throughout the separation process.

5.  The available evidence further shows he had a disciplinary record that included numerous instances of NJP, two convictions by court-martial, and an extensive history of AWOL.  He clearly exhibited a total disregard for military authority and a complete lack of discipline and military bearing.

6.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel; 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20130010131



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