BOARD DATE:	  29 May 2014

		DOCKET NUMBER:  AR20130015645 


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 his third DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 18 December 1970 be upgraded to a general discharge or uncharacterized discharge.

2.  The applicant states that based on his prior honorable service, to include receiving the Army Good Conduct Medal, two prior enlistments, and wartime service in the Republic of Vietnam (RVN), he feels he was treated poorly and unjustly at Fort Riley, KS.  He would like to have the type of discharge he received removed from his records.

3.  The applicant provides a copy of his military service records from the National Archives and Records Administration.

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 was inducted into the Army of the United States on 7 October 1964.  He completed training and was awarded military occupational specialty (MOS) 36A (Wireman).  He was later converted to MOS 72C (Switchboard Operator).  

3.  On 7 October 1965, he was honorably discharged for immediate reenlistment on 8 October 1965.  

4.  He arrived in the RVN and was assigned to the U.S. Army Strategic Communications Command Facility at Phu Lan on 27 November 1966.  On 
11 January 1969, he was honorably discharged for immediate reenlistment on 
12 January 1969.

5.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 11 January 1969 shows he was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal with four bronze service stars
* RVN Campaign Medal with Device (1960)
* Army Good Conduct Medal (1st Award)

6.  On 25 August 1969, he departed the RVN.  He was assigned to the 24th Replacement Detachment, 24th Infantry Division, Fort Riley, KS.

7. On 16 October 1969, 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) during the period 6 October 1969 through 
16 October 1969.

8.  On 19 October 1969, he was assigned to C Company, 24th Signal Battalion, Fort Riley, KS.

9.  On 3 February 1970, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL during the period 3 November 1969 through 25 December 1969.

10.  His record shows he was in confinement during the period 26 December 1969 through 1 February 1970.

11.  A DD Form 458 (Charge Sheet), dated 23 November 1970, shows charges were preferred against him for being AWOL during the period 3 February 
1970 through 20 September 1970.

12.  On 28 November 1970, after consulting with counsel, he submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that 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 law.  He also acknowledged that he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his behalf.

13.  On 14 December 1970, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be issued an undesirable discharge certificate and reduced to the lowest enlisted grade.  On 18 December 1970, he was discharged accordingly.  He had completed 5 years, 2 months, and 4 days of total creditable active service during this period, with 393 days of lost time due to AWOL and confinement.

14.  Army Regulation 635-200 sets forth the basic policy for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.

	b.  At the time, Army Regulation 635-200 did not list "uncharacterized" as an option for characterization of service.  Paragraph 3-9 of the version currently in effect states service will be uncharacterized if separation proceedings are initiated while a Soldier is in an entry-level status (i.e., has completed no more that 180 days of continuous service).  

	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 service in the RVN as well as his awards and decorations are acknowledged.  However, they are not sufficiently mitigating to grant him the requested relief.  Thousands of other Soldiers served honorably under similar or even more stressful situations without later going AWOL.  There is no evidence indicating he was treated poorly or unjustly.  

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with being AWOL for more than 6 months, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

3.  His records show that during his final enlistment he received NJP twice and had three instances of AWOL, one for a lengthy period.  There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service.  Therefore, there is an insufficient basis upon which to upgrade 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)                                         AR20130015645





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ABCMR Record of Proceedings (cont)                                         AR20130015645



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