BOARD DATE:	 24 June 2014

		DOCKET NUMBER:  AR20130019573


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 discharge, from an under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was a drug user during his service in the Republic of Vietnam; however, he entered a rehab program and he has been drug-free since December 2005.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or 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 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.  On 10 August 1965, the applicant enlisted in the U.S. Air Force (USAF).  He served on active duty until 13 January 1969; however, his DD Form 214 for that period is not available for review.  He served in the USAF Reserve from on or about 14 January 1969 to on or about 9 November 1970, at which time he was honorably discharged from the USAF.

3.  On 10 November 1970, he enlisted in the Regular Army.  He completed basic combat training.  After completing basic combat training, he was awarded military occupational specialty 68G (Airframe Repairman) based on training he completed during his service in the USAF.  

4.  On or about 2 March 1971, he was assigned to the 568th Transportation Company, Fort Wainwright, AK.

5.  On 8 June 1971, 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 on or about 19 May 1971 through on or about 8 June 1971.

6.  Special Orders Number 113, issued by Headquarters, 19th Aviation Battalion on 16 June 1971, reassigned him as an overseas volunteer to the U.S. Army Overseas Replacement Station, Fort Lewis, WA, effective 4 August 1971, for his eventual overseas deployment to the Republic of Vietnam.  

7.  On 13 August 1971, he accepted NJP under the provisions of Article 15 of the UCMJ, for being AWOL from on or about 4 August 1971 through on or about    12 August 1971.

8.  Upon arrival in the Republic of Vietnam, he was assigned to Company A, 5th Transportation Battalion.

9.  On 26 September 1971, court-martial charges were preferred against him for wrongful possession and use of a habit-forming narcotic (heroin), on or about      6 September 1971.

10.  On 26 September 1971, his immediate commander initiated his bar to reenlistment.  His cited reason for barring the applicant's future service was drug usage and other conduct and habits unbecoming a Soldier in the U.S. Army.  

11.  On 15 October 1971, his bar to reenlistment was approved.

12.  On 11 November 1971, he accepted NJP under the provisions of            Article 15 of the UCMJ, for dereliction of duty on or about 8 November 1971.

13.  On or about 11 November 1971, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and the procedures and rights that were available to him. Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

14.  In his request for discharge, he indicated he understood that if his request for discharge was accepted, he would normally be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He indicated he had been advised as to the possible effect of an undesirable discharge and understood that he may be deprived of many or all Army benefits, that he may 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. 

15.  On 24 November 1971, the separation authority approved his request for discharge and directed he be issued an Undesirable Discharge Certificate.

16.  On 29 February 1972, he was discharged accordingly in the rank/grade of private/E-1.  The DD Form 214 he was issued shows his characterization of service was classified as under other than honorable conditions.

17.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

   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.
   c. Chapter 10 of that regulation provides, in pertinent part, 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.  However, at the time the applicant was discharged an undesirable discharge was considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is an insufficient basis to grant his request.  

2.  The evidence of record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  In lieu of trial by court-martial, he voluntarily requested to be discharged from the Army.  

3.  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.  

4.  His administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evidence shows he benefitted from the advice of counsel throughout the separation process.

5.  The available evidence shows he had a disciplinary record that included numerous instances of misconduct that started before he went to Vietnam and that led to NJP and court-martial charges.   He clearly exhibited a total disregard for military authority and a complete lack of discipline and military bearing.

6.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel; 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)                                         AR20130019573



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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