BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130012245 


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 is a Vietnam veteran.  He had problems with his wife and children at the time and this caused him to err or become distracted from his duties. 

3.  The applicant provides an internet printout about upgrading your military 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, on 11 May 1967, he was inducted into the Army of the United States and he held military occupational specialty 11F (Infantry Operations and Intelligence Specialist). 

3.  On 16 August 1967, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for violating a general regulation.  

4.  On 12 September 1967, he again accepted NJP under the provisions of Article 15 of the UCMJ for violating a general regulation on two separate occasions.  

5.  He served in Vietnam from on or about 17 October 1967 to 14 October 1968.  He was wounded in action on 6 April 1968.  

6.  On 11 February 1969, he was honorably discharged for the purpose of immediate enlistment in the Regular Army.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for this period of service shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Combat Infantryman Badge
* Purple Heart
* two overseas service bars

7.  He enlisted in the Regular Army on 12 February 1969.  He was assigned to the 51st Engineer Battalion, Fort Campbell, KY.  

8.  While at Fort Campbell, he accepted NJP under the provisions of Article 15 of the UCMJ on three separate occasions: 

* 20 August 1969, for being absent without leave (AWOL) from 13 to 20 August 1969
* 12 September 1969, for being AWOL from 4 to 8 September 1969 and failing to obey an order twice
* 14 November 1969, being AWOL from 6 to 10 November 1969

9.  On 9 March 1970, he was convicted by a special court-martial of two specifications of being AWOL from 19 to 24 November 1969 and 2 December 1969 to 5 January 1970.  The court sentenced him to confinement at hard labor for 3 months, a forfeiture of $50.00 pay for 3 months, and a reduction to the lowest enlisted grade.  The convening authority approved the sentence but suspended the confinement at hard labor for 3 months, for 6 months. 

10.  On 3 April 1970, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his ongoing misconduct, primarily his extensive history of AWOL.  The applicant was furnished a copy of this bar but elected not to submit a statement on his own behalf.  The bar was ultimately approved by the approval authority. 

11.  On 5 May 1970, the convening authority ordered the suspended sentence to confinement at hard labor for 3 months executed.  

12.  On 18 September 1979, court-martial charges were preferred against him for four specifications of being AWOL from 16 April to 5 May 1970, 5 to 15 May 1970, 22 June to 7 August 1970, and 9 to 31 August 1970.

13.  On 5 October 1970, 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

14.  The applicant's immediate and intermediate commanders recommended approval of the discharge action and stated the applicant's behavior pattern rendered him unsuitable for further military service.  Each recommended an undesirable discharge. 

15.  On 22 October 1970, the separation authority approved the discharge action and ordered the applicant reduced to the lowest enlisted grade and to be discharged under the provisions of Army Regulation 635-1200, chapter 10, with an undesirable discharge.  Accordingly, the applicant was discharged on
22 October 1970.

16.  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 19 days of active service during this period and he had 84 days of lost time. 

17.  There is no indication he petitioned the Army Discharge Review Board within that board's 15-year statute of limitations. 

18.  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, on at least 7 occasions.  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 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, (which started before he arrived in Vietnam), which included 5 instances of NJP, an extensive history of AWOL, a court-martial conviction, and a bar to reenlistment, 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)                                         AR20130012245



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130012245



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1