IN THE CASE OF:	   

		BOARD DATE:	  18 September 2014

		DOCKET NUMBER:  AR20140003285 


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.

2.  The applicant states, in effect:

* he joined the Army in March 1967
* after getting his training, he volunteered for an assignment in Vietnam
* he could not adjust to stateside duty
* he went absent without leave (AWOL) several times
* he wanted out of the Army
* after he got out of the Army, he and his wife had two daughters
* he has always been a hard worker
* he has not been in any trouble
* President Carter pardoned and forgave those who chose to burn draft cards and those who fled to Canada to avoid serving their country
* he feels his country can forgive him since he served in Vietnam  

3.  The applicant provides:

* DA Form 19-32 (Military Police Report)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)




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 20 March 1967 for a period of 
3 years.  He completed training and was awarded military occupational specialty 64B (heavy vehicle driver).  He arrived in Vietnam on 11 August 1967. 

3.  In December 1968, nonjudicial punishment (NJP) was imposed against the applicant for causing a disturbance with several Vietnamese civilians. 

4.  He departed Vietnam on 13 March 1969.

5.  On 8 August 1969, he was convicted by a special court-martial of being AWOL from 15 June 1969 to 3 July 1969.  He was sentenced to be confined at hard labor for 2 months and to forfeit $50.00 pay per month for 4 months.  On 
14 August 1969, the convening authority approved the sentence.

6.  On 19 November 1970, charges were preferred against the applicant for being AWOL from 3 November 1969 to 5 December 1969, 6 December 1969 to 28 January 1970, 20 April 1970 to 28 June 1970, and 3 August 1970 to 
16 November 1970.  Trial by special court-martial was recommended.

7.  On 20 November 1970 after consulting with counsel, the applicant submitted a request for 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.  In his request, he indicated he understood he could be discharged under conditions other than honorable and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army 



benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

8.  On 11 December 1970, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

9.  On 11 December 1970, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 2 years, 11 months, and 3 days of total active service with 259 days of lost time.

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

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

	a.  Chapter 10 of the version 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 charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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 3-7a 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 applicant contends he has always been a hard worker and hasn't been in any trouble.  However, good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he elected not to do so.

3.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

4.  His record of service during his enlistment included one NJP, one special court-martial conviction, and 259 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.

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)                                         AR20140003285





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ABCMR Record of Proceedings (cont)                                         AR20140003285



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