IN THE CASE OF

		BOARD DATE:	  24 July 2014

		DOCKET NUMBER:  AR20130021493 


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 under other than honorable conditions discharge.

2.  The applicant states this happened 38 years ago and he was a much different person at the time.  He feels he has carried this [characterization of service] for far too long.  He is not claiming his discharge to be in error or unjust.  It simply has been going on for too long.  He completed two tours in Vietnam.  

3.  The applicant does not provide any evidence. 

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 records show he enlisted in the Regular Army on 3 January 1966 and he held military occupational specialty 36C (Lineman).  He served in Vietnam from 9 November 1966 to 27 October 1967.  

3.  While in Vietnam, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 8 June 1967, failing to go at the time prescribed to his appointed place of duty
* 8 July 1967, being absent without leave (AWOL) from 8 to 9 July 1967

4.  He was honorably discharged from active duty on 14 January 1968 for the purpose of immediate reenlistment.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he competed 2 years and 12 days of active service.  He was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* one overseas service bar
* Sharpshooter Marksmanship Qualification Badge with Rifle bar (M-14)

5.  He reenlisted in the Regular Army on 15 January 1968.  He was assigned to the 78th Signal Battalion, Fort Lewis, WA.  

6.  On 19 March 1968, consistent with his pleas, he was convicted by a special court-martial of three specifications of being AWOL from 20 to 25 February 1968, 25 to 26 February 1968, and 26 February to 9 March 1968, and one specification of breaking restriction.  On 21 March 1968, the convening authority approved a lesser sentence of forfeiture of $60 pay per month for 6 months, a suspended confinement for 6 months, and a reduction to E-1. 

7.  On 24 May 1968, he was convicted by a special court-martial of one specification of AWOL from 24 March to 25 April 1968.  The court sentenced him to a forfeiture of $90 pay per month for 6 months and confinement at hard labor for 6 months.  On 5 June 1968, the convening authority approved the sentence. 

8.  He served in Germany from 6 November 1968 to 24 September 1969.  While in Germany, he accepted NJP under the provisions of Article 15 of the UCMJ on/for: 

* 9 September 1969, failing to go at the time prescribed to his appointed place of duty
* 16 September 1969, also failing to go at the time prescribed to his appointed place of duty

9.  He served in Vietnam from 14 November 1969 to 25 October 1970.  He was then reassigned to Fort Dix, NJ.  While there, he accepted NJP under the provisions of Article 15 of the UCMJ on 3 December 1970 for being AWOL from 3 December 1970 to 16 January 1971. 

10.  On 16 February 1971, he departed his unit in an AWOL status and on 15 March 1971, he was dropped from the Army rolls as a deserter.  He was apprehended by civil authorities and returned to military control on 12 September 1975. 

11.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains:

	a.  Orders 090, issued by Headquarters, 7th Infantry Division, Fort Ord, CA, on 19 December 1975, ordering his discharge from active duty effective 23 December 1975 with an under other than honorable conditions discharge.

	b.  A DD Form 214 that shows he was discharged on 23 December 1975 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, discharge for the good of the service in lieu of trial by court-martial with the issuance of an Undesirable Discharge Certificate, and he was assigned a separation program designator (SPD) code of KFS (Administrative discharge conduct triable by court-martial).  He completed 3 years, 1 month, and 22 days of total active service during this period with 1,747 days of lost time. 

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

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

	a.  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, an under other than honorable conditions discharge 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 available record shows the applicant appears to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  He appears to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial. 

2.  Although his record is void of all of the specific facts and circumstances that led to his discharge, it contains a DD Form 214 that shows he was discharged on 23 December 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.  By then, he had accumulated 1,747 days of lost time. 

3.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service. 



4.  While his tours in Vietnam are noted, the applicant's military service was marred with misconduct from beginning to end and included an extensive history of lost time, multiple instances of NJP, and two convictions by a special court-martial.   

5.  The characterization of service for individuals separated under the provisions of chapter 10 of Army Regulation 635-200 is normally under other than honorable conditions.  The Army has never had a policy wherein a characterization of service is upgraded due to passage of time.  

6.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting him 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 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)                                         AR20130021493





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ABCMR Record of Proceedings (cont)                                         AR20130021493



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