IN THE CASE OF:	   

		BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140002079 


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 to a general discharge.

2.  The applicant states, in effect, that after his tour in Vietnam ended he returned home on leave before reporting to his follow-on assignment in Germany.  However, after being exposed to the horrors of Vietnam, he wanted to remain in a safe place so he was unable to return to military service.

3.  He realizes now that he should have returned and he regrets his decision not to do so, but he was young and not thinking clearly.  He has been diagnosed with prostate cancer due to exposure to Agent Orange while serving in Vietnam, and he contends he was a good Soldier up until going absent without leave (AWOL).  He has tried to be a good person and has not been in trouble with law enforcement.

4.  The applicant provides five character references.

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.  On 6 March 1969, the applicant was inducted into the Army of the United States at approximately 19 years of age.  After completing his initial entry training, he served in military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  A review of his record shows he was assigned to the 1st Battalion, 20th Infantry Regiment, 11th Infantry Brigade, Vietnam, from July 1969 to July 1970.

4.  On 20 July 1982, he was charged with being AWOL from 31 August 1970 to 13 July 1982.

5.  On 21 July 1982, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable discharge, and of the procedures and rights available to him.

6.  After consulting with counsel, he 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.  He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charges against him or of lesser-included offenses therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate

7.  The separation authority approved his request for discharge for the good of the service and directed his discharge under other than honorable conditions.  On 5 December 1983, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 2 years, 10 months, and 18 days of net active service.  He had lost time prior to his expiration term of service (ETS) from 31 August 1970 through 5 March 1971 and lost time after his normal ETS from 6 March 1971 through 12 July 1982.

8.  On 18 December 1996, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  He provides several character references which attest to his work ethic, family values, community service, moral character, and trustworthiness.

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

	a.  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.  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.

	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 contends that his discharge should be upgraded because he was young and his experience in Vietnam made him unable to remain in the Army.

2.  Records show he was approximately 20 years of age at the time he was assigned to Vietnam, and the trauma he experienced during his tour of duty is not in question; however, there is no evidence that indicates he was any less mature than other Soldiers of the same age who served in Vietnam and went on to successfully complete their military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  His post-service achievements are noted; however, his records show he was charged with being AWOL (and desertion) for over 11 years, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

4.  In his request for discharge, he admitted he was guilty of an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on his admission of guilt, his service was clearly unsatisfactory.  Therefore, there is an insufficient basis upon which 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 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)                                         AR20140002079





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ABCMR Record of Proceedings (cont)                                         AR20140002079



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