BOARD DATE:	  19 August 2014

		DOCKET NUMBER:  AR20130021546 


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 (UD). 

2.  The applicant states:

   a.  His discharge needs to be upgraded.  He was drafted into the Army in March 1969.  He was sent to Vietnam to perform his duty and serve his country.  He performed his duty well.  He tried to extend while in Vietnam to receive an early-out, but was denied.  He could not understand why.  Other guys in his company applied and received an extension.

   b.  He served with the 4th Infantry Division and saw a lot along with everyone over there.  When he returned from Vietnam he requested to be stationed close to home which was Fort Knox or Fort Campbell, KY; instead, he was assigned to Fort Carson, CO.  He had been away from his family long enough.  He tried to adapt to state-side duty, but he couldn't.  He tried to Soldier, but it always ended up being a disaster.  He is 66 years of age and would like to have his discharge upgraded.  He did his duty by going to Vietnam and serving over there.  He performed honorably.

3.  The applicant provides copies of the following:

* DD Form 214 (Report of Separation from Active Duty)
* Department of Veterans Affairs (VA) Forms 21-4138 (Statement in Support of Claim)
* three character reference letters
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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant was inducted into the Army of the United States on 3 March 1969.  He served as a light weapons infantryman.  He was promoted to the rank/grade of specialist four/E-4 on 11 November 1969.  He served in Vietnam from 24 July 1969 through 20 July 1970.  

3.  He was honorably discharged on 25 September 1970 for the purpose of immediate enlistment.  He enlisted in the Regular Army on 26 September 1970.

4.  On 17 May 1971, he was convicted by a special court-martial of one specification each of being absent without leave (AWOL) during the following periods:

* from on or about 26 October 1970 through on or about 29 November 1970
* from on or about 20 December 1970 through on or about 4 January 1971
* from on or about 13 January 1971 through on or about 17 March 1971
* from on or about 6 April 1971 through on or about 30 April 1971

He was sentenced to confinement at hard labor for seventy-five days and a forfeiture of pay for two months.  

5.  On 31 July 1971, the convening authority approved the sentence.

6.  On 4 August 1971, he was convicted by a special court-martial of being AWOL from on or about 18 May 1971 through on or about 10 July 1971.  He was sentenced to confinement at hard labor for 5 months and a forfeiture of pay for   5 months.  

7.  On 9 August 1971, the convening authority approved the sentence.

8.  He accepted nonjudicial punishment (NJP), under the provisions of Article    15 of the Uniform Code of Military Justice (UCMJ), on the following occasions:

* on 5 October 1972, for absenting himself from his unit on 3 October 1972
* on 15 June 1973, for violating a lawful regulation, on or about 13 June 1973, and for failing to go at the prescribed time to his appointed place of duty, on or about 15 June 1973

9.  He was reported AWOL by his unit on 30 July 1973.  He remained AWOL until he was returned to military control on or about 20 September 1973. 

10.  He was reported AWOL on 21 September 1973.  He was apprehended by the Federal Bureau of Investigation (FBI) and returned to military control on 21 December 1973.

11.  He was again reported AWOL on 7 January 1974.  He was apprehended by the FBI and returned to military control on 5 March 1974.

12.  His record contains a DD Form 458 (Charge Sheet), dated 8 March 1974, which was completed by the Commander, U.S. Army Special Processing Battalion, Fort Knox, KY.  According to this Charge Sheet, on 12 March 1974, court-martial charges were preferred against the applicant for three specifications of violations of Article 86 of the UCMJ.  Specifically, he was charged with being AWOL during the periods:

* from on or about 30 July 1973 through on or about 20 September 1973
* from on or about 21 September 1973 through on or about 21 December 1973
* from on or about 7 January 1974 through on or about 5 March 1974

13.  On 18 March 1974, after consulting with counsel, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trail by court-martial.  He acknowledged that he had not been subjected to coercion with respect to that request for discharge and he had been advised of the implications that were attached to it.  He also acknowledged that he could be discharge under other than honorable conditions and furnished a UD Certificate and the result of the issuance of such a discharge.  He waived his rights and elected to submit a statement in his own behalf, in which he stated:   

   a.  He was inducted into the Army on 3 March 1969.  When he was drafted he hated the Army, but he knew that he had to finish it through.  He disliked the Army even more during advanced individual training because he knew that he had to go to Vietnam.  He spent his year there and made it back ok.  When he returned he wanted to be stationed close to home and instead he was sent to Fort Carson.  He stayed there for about a week.  He reenlisted to receive money to get home to be with his fiancé.

   b.  After arriving at Fort Carson his attitude got worse.  His wife wanted him out of the Army and he also wanted out.  After being court-martialed he was sent to confinement.  After getting out of confinement he was sent to Fort Riley, KS, permanently.  As soon as he arrived at Fort Riley he experienced problems with his pay and that continued for about five months.  He had to request money from home to pay rent.  All he received from the Army was $20.00, health, and comfort.  He and his wife couldn't make it that way.  Finally, his pay was fixed and some months later he was sent to Korea.

   c.  He knew going to Korea was going to be bad for his marriage.  While on leave in June 1974, he went home and discovered his wife was in Arizona with some other guy.  He was supposed to return from leave by the end of July, but he didn't go back.  He went to look for his wife.  He found her and brought her back.
   
   d.  His step-brother was killed in a car wreck and eight weeks later his step-father died.  His mom needed his help so he helped her.  He thinks his life was made worse by the Army because he never had the time to share with his wife and she wanted him to get out of the Army.  He knew there was no way he could honorably finish.  He thought it would best if the Army discharged him for the good of the service.  To date, he did not like the Army and there was no way that anyone could ever change that.  If he was not discharged, he would just keep going AWOL until he was finally discharged.  For some people, the Army was their only life and they loved it, but he knew that he could never go back to duty again.

14.  On 18 March 1974, the Commander, Special Processing Company, recommended approval of the applicant's discharge.  On 27 March 1974, the separation authority approved the applicant’s request and directed the issuance of a UD and reduction to pay grade E-1.

15.  Accordingly, he was discharged on 11 April 1974.  He was credited with completing 2 years, 3 months, and 6 days of net active service this period and 466 days of time lost.  He was issued a UD Certificate.

16.  He provides copies of the following:

   a.  A VA Form 21-4138, dated 23 December 2013, wherein he stated he was submitting three character reference letters in support of his application.

   b.  Three character reference letters wherein the individuals, whom the applicant served with in Vietnam, attested that the applicant was always professional, reliable, accurate, succinct on the radio, served in Vietnam with honor and dignity, and was a Soldier one could count on to do the job with little instructions and know the job would be completed successfully.

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

18.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations stated in:
   
   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there be no element of coercion involved in the submission of such a request and that the requesting Soldier be provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial. 

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence that would entitle him to an upgrade of this discharge.  The evidence shows his misconduct during his short period of service diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to 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)                                         AR20130021546





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ABCMR Record of Proceedings (cont)                                         AR20130021546



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