IN THE CASE OF: 

		BOARD DATE:	    24 April 2014

		DOCKET NUMBER:  AR20130014248 


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 he could not adjust to military life due to his tour of duty in Vietnam.  It has been over 45 years since he was discharged. 

3.  The applicant does not provide any 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.  The applicant's records show he enlisted in the U.S. Army Reserve on 24 February 1964.  He entered active duty for training (ACDUTRA) on 18 April 1964 and completed training for military occupational specialty (MOS) 550.00 (Supply Handler).  He was honorably released from ACUDTRA on 4 September 1964. 

3.  He enlisted in the Regular Army (RA) on 23 February 1965.  He was assigned to Fort Jackson, SC, for initial training and Fort Story, VA, for advanced individual training.  

4.  On 6 April 1965, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 3 to 5 April 1965.  

5.  On 8 November 1965, at Fort Story, VA, he accepted NJP under the provisions of Article 15 of the UCMJ for exceeding the geographical limits of his liberty pass. 

6.  On 7 January 1966, in Norfolk, VA, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 2 to 7 January 1966.  

7.  He served in Vietnam from 1 February 1966 to 21 November 1967.  He was assigned to the 1st Battalion, 77th Artillery, 1st Cavalry Division.  

8.  He was honorably discharged on 11 October 1966 for the purpose of immediate reenlistment in the RA.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or authorized the:

* Vietnam Service Medal
* Vietnam Campaign Medal
* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Missile Launcher Bar
* one overseas service bar

9.  He reenlisted in the RA on 12 October 1966.  Upon completion of his Vietnam tour, he was reassigned to Fort Benning, GA. 

10.  On 2 April 1967, he was convicted by a special court-martial of one specification of AWOL from 19 November 1966 to 13 February 1967.  The court sentenced him to reduction to E-1, a forfeiture of pay, and confinement for 
6 months.  The convening authority approved his sentence on 14 April 1967. 



11.  On 24 November 1969, he was again convicted by a special court-martial of one specification of AWOL from 1 to 22 October 1969.  The court sentenced him to confinement at hard labor for 1 month and forfeiture of pay.  The convening authority approved his sentence on 3 December 1969.  

12.  On 6 January 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty and for being AWOL from 28 to 30 December 1969.

13.  On 27 November 1970, he was convicted by a special court-martial of one specification of AWOL from 8 February to 16 October 1970.  The court sentenced him to confinement at hard labor for 4 months and forfeiture of pay.  The convening authority approved his sentence on 14 December 1970.  

14.  His DA Form 20 (Enlisted Qualification Record) shows he departed his unit in an AWOL status on 26 January 1971 and he was dropped from the Army rolls on 2 March 1971.  He appears to have returned to military control on or about 4 May 1971. 

15.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 showing he was discharged on 19 July 1971 under other than honorable conditions for the good of the service in lieu of trial by court-martial on under the provisions of Army Regulation 635-200, chapter 10 (Separation Program Number 246), with the issuance of an Undesirable Discharge Certificate.  This form also shows he completed 3 years, 1 month, and 29 days of total active service with multiple periods of lost time.

16.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, an undesirable discharge was normally considered appropriate at the time.

	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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded.

2.  The applicant's records are void of the specific facts and circumstances surrounding his discharge.  However, based on the entries on his DA Form 20 and his DD Form 214, it appears that he 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 for the good of the service in lieu of trial by court-martial.

3.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service.

4.  His contention that he could not adjust to military life due to his tour in Vietnam is rejected.  The evidence of record confirms his misconduct began before he arrived in Vietnam as evidenced by the three instances of NJP he received.  Likewise, his contention that it has been 45 years since he was discharged is also rejected.  The Army does not have a policy wherein a characterization of service is upgraded due to the passage of time.  

5.  Based on his record of indiscipline, specifically his extensive history of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20130014248



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ABCMR Record of Proceedings (cont)                                         AR20130014248



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