IN THE CASE OF:	  

		BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20140000715 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states he had previously applied for an upgrade of his discharge and has never received any word of his request.  He served in Vietnam and is owed an upgrade of his discharge for that service as he now suffers from diabetes and Agent Orange. 

3.  The applicant provides no additional documents with his application

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 at the age of 21 on 6 April 1966 for a period of 3 years under the airborne enlistment option.  He completed his basic training at Fort Benning, Georgia and his advanced individual training as a light weapons infantryman at Fort Gordon, Georgia and was transferred to Fort Benning to undergo airborne training.

3.  On 10 October 1966, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 13 – 29 September 1966.  The applicant was also permanently disqualified for further airborne training due to lack of motivation and an expressed desire not to continue further training.

4.  He was transferred to Vietnam on 15 December 1966 and was promoted to the pay grade of E-3 on 31 December 1966.  He departed Vietnam on 11 December 1967 for assignment to Fort Carson, Colorado.

5.  On 29 June 1968, he went AWOL and remained absent in desertion until he was returned to military control at Fort Campbell, Kentucky on 27 February 1970.

6.  On 30 March 1970, he was convicted by a special court-martial of being AWOL from 29 June 1968 to 26 February 1970.  He was sentenced to confinement at hard labor for 6 months, a forfeiture of pay for 6 months, and reduction to the pay grade of E-1. 

7.  He served his confinement sentence at the Confinement Training Facility at Fort Riley, Kansas and was transferred to Fort Stewart, Georgia on 15 June 1970.

8.  The applicant again went AWOL on 1 July 1970 and remained absent in desertion until he was again returned to military control at Fort Campbell on 3 February 1971.  Charges were preferred against the applicant.

9.  On 24 February 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – General), chapter 10, in lieu of trial by court-martial.  In his request he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He elected not to submit a statement in his own behalf.

10.  The appropriate authority (a brigadier general) approved his request on        18 March 1971 and directed issuance of an Undesirable Discharge Certificate.
11.  Accordingly, on 29 March 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 5 months, and 29 days of active service and had 532 days of lost time due to AWOL and confinement.

12.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 10 January 1975 contending that he was a good Soldier in Vietnam and that his discharge should be upgraded, that he should be allowed to again enlist in the Army and that his rights should be restored.  After reviewing the facts and circumstances surrounding his discharge the ADRB determined that his discharge was both proper and equitable and voted four to one to deny his request for an upgrade of his discharge on 19 June 1975.  The response to his application was mailed on 21 July 1975 to the Memphis address provided by the applicant at the time.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

14.  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.  The applicant's 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 regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.
3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his repeated and extensive absences, his overall record of service, and the absence of substantiated mitigating circumstances.  

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)                                         AR20140000715



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000715



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1