IN THE CASE OF

		BOARD DATE:	    15 July 2014

		DOCKET NUMBER:  AR20130021239 


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 undesirable discharge to general under honorable conditions.

2.  The applicant states:

	a.  In 1973, the U.S. Army did not take into consideration the effect of multiple combat deployments.

	b.  He reenlisted while he was stationed at Fort Leavenworth, KS, with the option to stay there for 1 year, but he received orders for Vietnam within 6 months.

	c.  While he was away, his two daughters were born.  Upon his return, his wife told him she wanted a divorce because, according to her, he was not there for her and the girls when they needed him.

	d.  He was absent without leave (AWOL) to try to save his marriage and be with his girls.  He was then picked up and taken to Fort Campbell, KY, where he was later discharged.

	e.  He was asked why he was AWOL and he explained that he wanted to save his family and he would be AWOL again.  He would come to regret the decision because he ended up getting divorced anyway, but at the time he was doing what he felt he needed to do.

	f.  The back-to-back deployments were the main cause of the problems that resulted in an undesirable discharge.

	g.  Because of the War on Terror and the lessons learned from previous wars, he believes the U.S. military now takes more care of the service members and their dependents to keep this from happening.

	h.  He believes he performed in an honorable manner during his first year in Vietnam and up until his family issues during his second deployment.  He has been an upstanding and responsible citizen and a community member.

3.  The applicant provides DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending 17 March 1970 and 15 May 1973 and four third-party statements of support.

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 16 October 1967 for a period of 3 years.  He served in Vietnam from 16 April 1968 to 6 May 1969.

3.  On 18 March 1970, he reenlisted for a period of 6 years.  His reenlistment contract shows he reenlisted for "present duty assignment."

4.  His reenlistment documents include a DA Form 3286-22 (Statements for Enlistment), Part VI (Present Duty Assignment Option) that shows he understood that his enlistment option carried no guarantee or implied promise that any specific portion of his enlistment would be served in the assignment for which he enlisted.

5.  He accepted nonjudicial punishment (NJP) on 12 April 1972 for being AWOL from 27 to 31 March 1972 and from 31 March to 11 April 1972.

6.  He also accepted NJP for being AWOL from 5 to 22 June 1972 and from 3 to 8 July 1972, and for making a false official statement to the military police on 27 June 1972.

7.  On 2 March 1973, he was again AWOL and remained AWOL until he was apprehended by civilian authorities on 16 April 1973.

8.  On 25 April 1973, court-martial charges were preferred against him for all of his AWOL offenses.

9.  On 27 April 1973, 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 (Personnel Separations – Enlisted Personnel), chapter 10, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

10.  He acknowledged in his request that he could be discharged under other than honorable conditions and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

11.  On 9 May 1973, the separation authority approved his request for discharge and directed his reduction to private/E-1 and issuance of an Undesirable Discharge Certificate.  On 15 May 1973, he was discharged accordingly.  His DD Form 214 for this period of service shows he accrued 290 days of lost time and his service was characterized as under other than honorable conditions.

12.  The Army Discharge Review Board denied his requests for an upgrade of his discharge on 29 June 1976 and on 28 September 1978.

13.  He provided four third-party statements of support that attest to his positive character and post-service accomplishments and fully support the upgrade of his discharge.

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

	a.  Chapter 10, 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, the type of discharge normally given under the provisions of this chapter, the loss of VA 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 to an individual who was discharged for the good of the service.

	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's contention that his undesirable discharge should be upgraded to general under honorable conditions has been carefully considered.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  His voluntary request for discharge 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 laws and regulations. There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes NJP on two occasions, court-martial charges for being AWOL, and 290 days of lost time.  Based on this record of indiscipline and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that he reenlisted with the option to be stabilized at Fort Leavenworth, KS, for 1 year; however, the available evidence shows he understood that his enlistment option carried no guarantee or implied promise that any specific portion of his enlistment would be served in the assignment for which he enlisted.

6.  The supporting documentation provided was noted; however, these documents do not indicate that his discharge processing and/or the character of service he received were in error or unjust.

7.  Based on the foregoing, there is no basis to grant the requested relief.

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 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)                                         AR20130021239



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ABCMR Record of Proceedings (cont)                                         AR20130021239



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