IN THE CASE OF:	

		BOARD DATE:	  5 June 2014

		DOCKET NUMBER:  AR20130017408 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  He states:

	a.  he enlisted in the U.S. Army in 1967 at the age of 17.  He was deployed to the Republic of Vietnam in February 1968 while he was still 17 years old and he turned 18 years old in March 1968 while in-country.

	b.  he was divorced within 6 months of returning from Vietnam.

	c.  he was young, out of control, and wouldn't listen to orders so he finally went absent without leave (AWOL).

	d.  he was offered a deal from a Judge Advocate General (JAG) officer at his court-martial.  He was advised to write a letter to the Army explaining why he wanted to be discharged from the service.  He wrote how he hated the color green and he was offered a chapter 10 discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service in lieu of trial by court-martial, which was explained to him as a resignation from the service for the benefit of the service.

	e.  he was sent to prison in August 1974 for life for beating a man to death where he spent 38 years, 11 months, and 20 days.

	f.  no one had heard of Post-Traumatic Stress Disorder (PTSD) from 1974 until the first Gulf War.  PTSD is now being recognized as a disorder.  He has developed a heart problem at the age of 59.  He was made aware through the Department of Veterans Affairs of complications due to exposure of Agent Orange in Vietnam.

3.  He provides:

* Letter from the Department of the Army, Office of the Adjutant General, Reserve Components Personnel and Administration Center
* Letters from the Department of the Army, Military Review Boards Agency
* Letter addressed to the Army Discharge Review Board
* OSA Form 172 (Army Discharge Review Board - Case Report and Directive)

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 service record shows he enlisted in the U.S. Army Reserve under the delayed entry program on 15 June 1967 at the age of 18.  He enlisted in the Regular Army on 28 August 1967.  He served in Vietnam from 14 February to 25 July 1968.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on 4 and 24 July 1969 for the following offenses:

* disobeying a lawful order from his superior commissioned officer
* failing to go at the time prescribed to his appointed place of duty from 15 through 19 July 1969

4.  On 13 May 1970, he was convicted by a special court-martial, contrary to his plea, of being AWOL from 5 November 1969 to 27 April 1970.

5.  On 9 June 1972, charges were preferred against him for being AWOL from 3 June 1970 to 8 June 1972.

6.  He consulted with legal counsel and voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged he might encounter substantial prejudice in civilian life.  He also acknowledged he might be ineligible for many or all Army benefits administered by the Veterans Administration if an undesirable discharge were issued.  He submitted statements in his own behalf.  He stated he wanted to get out of the Army because of the functions and injustices of the Army.  He also stated he would gladly accept a misconduct, undesirable, or dishonorable discharge with no hesitation at all.  He served two and one-half years in the Airborne, one-half year in Vietnam, and would gladly give up all medals or any green material stamped U.S. Army on it.

7.  On 29 June 1972, the separation authority approved his discharge under the provisions of Army Regulation 635-200, chapter 10 with an undesirable discharge and he was reduced to the lowest enlisted grade.

8.  On 3 July 1972, he was discharged after completing 2 years, 3 months, and 21 days of creditable active service with 915 days of time lost.

9.  On 28 September 1981, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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.  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 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 the rights of the applicant were fully protected throughout the separation process.  

2.  The applicant's record shows he was charged with being AWOL, which is punishable under the UCMJ with a punitive discharge.  He received two Article 15s, one conviction by a special court-martial, and had 915 days of time lost.

3.  The evidence of record shows he was 18 years of age when he enlisted and was 19 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and time lost rendered his service unsatisfactory.  Therefore, he is not entitled to either 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)                                         AR20130017408



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ABCMR Record of Proceedings (cont)                                         AR20130017408



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