IN THE CASE OF: 

		BOARD DATE:	    15 April 2014

		DOCKET NUMBER:  AR20130014577 


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 that his undesirable discharge be upgraded to at least a general discharge.

2.  The applicant states the error of his discharge was that his post-traumatic stress disorder (PTSD) was not recognized or attributed to his behavior.  He was not evaluated for any mental health issues that he was experiencing upon his return from Vietnam due to horrific wartime experiences.  It was extremely difficult for him to deal with his experiences upon his return which caused him to use poor judgment by going absent without leave (AWOL).  He served honorably in Vietnam and has regretted his actions for over 40 years.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), his Department of Veterans Affairs (VA) Rating Decision, and a copy of his charge sheet.

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 enlisted in the Regular Army on 9 November 1965 for a period of 3 years under the airborne enlistment option.  He completed basic training, advanced individual training as a cannoneer, airborne training at Fort Benning, and he was transferred to Fort Campbell, Kentucky for his first duty assignment.

3.  On 21 December 1966, he was honorably discharged for the purpose of immediate reenlistment.  He reenlisted on 22 December 1966 for a period of       3 years.

4.  On 1 December 1967, he was transferred to Vietnam with his unit.  He was promoted to the rank of corporal on 7 October 1968.

5.  He departed Vietnam on 25 June 1969 for assignment to Fort Bragg, North Carolina.  He went AWOL from 11 August to 20 August 1969.  The available records are silent as to any punishment imposed.  

6.  He again departed AWOL on 27 August 1969 and remained absent in desertion until he we was apprehended by civil authorities in Durham, North Carolina on 14 July 1975 and was returned to military control at Fort Bragg where charges were preferred against him for the absence.

7.  On 18 July 1975 after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  In his request, he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser-included offenses that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his own behalf which consisted of three lines indicating that it was his desire to request a discharge because he thought that he and the Army would be better off. 

8.  The applicant’s commander interviewed him and indicated that the applicant stated that his AWOL was stupid because he had only a short time left.  


9.  The appropriate authority approved his request for discharge on 
11 September 1975 and directed that he be issued an Undesirable Discharge Certificate. 

10.  On 9 October 1975, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 3 years,         11 months, and 22 days of total active service and had 136 days of lost time due to AWOL.  

11.  There is no evidence in the available evidence to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

12.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge.  In doing so, he admitted guilt to the charges against him.  

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given the length of his absence.  

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130014577





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ABCMR Record of Proceedings (cont)                                         AR20130014577



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