IN THE CASE OF:	  

		BOARD DATE:	  4 November 2014

		DOCKET NUMBER:  AR20140005512 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant states, in effect, that:

* there was no support from his chain of command upon his return from Vietnam
* clemency is warranted 
* under current standards he would have received a different type of discharge
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows over 75 percent positive achievements
* he showed a positive and productive attitude during training
* personal problems, drugs, adverse discrimination, and psychiatric-related problems impaired his ability to serve
* his discharge was based on minor offenses
* his family saw major changes in his character upon his return from Vietnam
* his punishment was severe based on today's standards

3.  The applicant provides a copy of his DD Form 214, his DA Form 20 (Enlisted Qualification Record), and a self-authored statement.



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 record shows he was inducted into the Army of the United States on 19 January 1970.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 76A (Supply Clerk).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  He arrived in Vietnam on or about 4 July 1970 and was assigned to the 36th Engineer Battalion (Construction).

3.  Based on the available evidence the complete facts and circumstances of the applicant’s discharge are not available for review with this case.  There are, however, sufficient records available to make a fair and impartial decision in this case.

4.  The available evidence indicates the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:
 
* On 11 October 1970, for failure to obey a lawful order
* On 13 January 1971, for sleeping on duty and for being absent without leave (AWOL) for the period 18 through 24 January 1971
* On 12 April 1971, for being AWOL on 12 April 1971
* On 16 June 1971, for being AWOL on 15 June 1971

5.  On 15 September 1971, the applicant was issued a DA Form 268 (Report for Suspension of Favorable Personnel Actions) while pending a special court-martial.

6.  On 12 November 1971, the applicant was discharged.  His DD Form 214 for this period of service shows he completed 1 year, 7 months, and 3 days of total creditable active military service, with 80 days of lost time.    
7.  There is no evidence in the applicant's personnel service record which shows he sought assistance from his chain of command for issues involving personal problems, drugs, adverse discrimination, or psychiatric-related problems, or that he notified his chain of command that his disciplinary problems were a result of these issues.

8.  On 21 April 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate; however, an undesirable discharge was considered appropriate at the time.

10.  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 request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request. 

2.  The specific facts and circumstances surrounding the applicant’s active duty discharge processing are not available for review.  The evidence does include a DD Form 214 that contains the authority and reason for the applicant’s active duty discharge.  

3.  Absent evidence to the contrary, the applicant 's request for discharge for the good of the service to avoid trial by court-martial under provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

4.  The evidence of record shows the applicant demonstrated a pattern of misconduct in that he received nonjudicial punishment for being AWOL, sleeping on duty, and disobeying a lawful order.  He was issued a DA Form 268 while pending a special court-martial.

5.  Although the applicant alleges that personal problems, drugs, adverse discrimination, and psychiatric-related problems adversely affected his military service, his record is void of evidence indicating he was diagnosed with psychiatric problems, he provides no evidence to show he has been diagnosed with a service-connected psychiatric problem, or that any psychiatric problems caused his drug abuse, instead of possibly the other way around.  Therefore, this argument is not sufficient to support his request for an upgrade of his discharge.

6.  In the absence of evidence to the contrary, it appears his discharge was appropriate because the quality of his service during his enlistment was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.

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)                                         AR20140005512



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ABCMR Record of Proceedings (cont)                                         AR20140005512



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