IN THE CASE OF:	

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130010594 


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, that his undesirable discharge be upgraded to honorable.

2.  The applicant states he enlisted in the Regular Army and extended his year in the Republic of Vietnam (RVN) for 6 months so that he would qualify for an early out when he returned to the United States.  For extending his combat tour, he received a 30-day special leave which he spent in Australia.  However, on the 29th day of that leave he was picked up as being absent without leave while on a 6-day rest and recuperation leave.  He tried to clear this up but could not get past the company clerk.  So, after awhile, he just refused his duties.  He was never locked up or detained.  Instead, he was sent to Fort Lewis, Washington and given an undesirable discharge.  He was up for Soldier of the month for 
2 months in a row during his first year in the RVN.  He never received rest and recuperation leave, and he does not know how or why the company clerk made this happen.  He feels he has wrongfully paid for this mistake for 43 years.  It would be nice to correct this while he is still living.  His mobile home burned to the ground in the late 1970s and he has absolutely no paperwork of any kind.  He is not even sure of his discharge date, but thinks it was in November 1970.

3.  The applicant provides no additional documentary 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.  On 20 June 1969, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 64B (Light Vehicle Driver).

3.  On or about 18 October 1969, the applicant departed the United States for duty in the RVN.  He was subsequently assigned to the 62nd Transportation Company as a heavy vehicle driver.

4.  On 13 October 1970, the applicant underwent a psychiatric evaluation.  He was found to have a chronic passive aggressive personality, manifested by an inability to tolerate authority and hostility to regulations.  He showed minimal stress.  There was no evidence that "he was going crazy."  There was no evidence of psychosis or uncontrollable impulses.  He was found to be mentally responsible, able to distinguish right from wrong, and to adhere to the right.  He was able to understand and participate in board proceedings.  It was also determined that further rehabilitative efforts probably would not be productive.

5.  On 23 October 1970, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (Absent Without Leave) and Article 92 (willfully disobeying lawful orders/regulations).  Specifications included:

   a.  Charge I:  Article 86, Specification 1:  leaving his appointed place of duty;

   b.  Charge II: 
   
        (1)  Article 92, Specification 1: failing to obey a lawful order to police around the billets;

       (2)  Article 92, Specification 2:  failing to obey a lawful order by not reporting to the motor pool for work; and

        (3)  Article 92, Specification 3:  violating a lawful general regulation by being in an off limits area.

6.  On 30 November 1970, the applicant 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 under other than honorable conditions discharge, and of the procedures and rights that were available to him.

7.  In his request for discharge, the applicant indicated he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He did not elect to make a statement in his own behalf.

8.  On 8 December 1970, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 14 December 1970, the applicant was discharged accordingly.  He had completed a total of 1 year, 5 months, and 
24 days of creditable active duty service.

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

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 92 for failure to obey is a punitive discharge and 2 years confinement.

11.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  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 (emphasis added), 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 contends that his undesirable discharge should be upgraded because he does not understand what happened.

2.  The available evidence shows the applicant failed to obey a general regulation and lawful orders resulting in appropriate court-martial charges.  He requested and received an administrative discharge in lieu of the more harsh punishment that he could have received as a result of a trial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  There is no error or injustice in the applicant's case.  Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130010594



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ABCMR Record of Proceedings (cont)                                         AR20130010594



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