IN THE CASE OF:	   

		BOARD DATE:	  2 December 2014

		DOCKET NUMBER:  AR20140005542 


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 he was discharged a long time ago and he would like it changed before he gets too old for his family to realize the history and time of his life.  He regrets his decisions back then and he would like his family to know he was proud to serve his country. 

3.  The applicant provides three letters of support. 

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 records show he enlisted in the Regular Army on 11 December 1967 and he held military occupational specialty 12B (Combat Engineer). 

3.  On 22 March 1968, at Fort Bragg, NC, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 16 to 21 March 1968.

4.  On 21 November 1968, at Fort Jackson, SC, he was convicted by a special court-martial of one specification of being AWOL from 3 August to 7 November 1968.  The court sentenced him to confinement at hard labor for 6 months, a forfeiture of $73.00 pay for 6 months, and reduction to the lowest enlisted grade. 

5.  On 26 November 1968, the convening authority approved the sentence but suspended the confinement for a period of 6 months.  

6.  He served in Vietnam from 15 December 1968 to 14 June 1970.  He was awarded or authorized the:

* National Defense Service Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-14)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16)
* Vietnam Service Medal
* Vietnam Campaign Medal
* One Overseas Service Bar
* Army Commendation Medal with "V" Device

7.  He was issued reassignment instructions to report to Fort Campbell, KY upon completion of his Vietnam tour.  It is unclear if he reported to Fort Campbell.  His DA Form 20 (Enlisted Qualification Record) shows, on 25 January 1970, he was reported in an AWOL status and, on 1 March 1970, he was dropped from Army rolls as a deserter.  It appears he ultimately returned to military control on or about 30 July 1972.  

8.  The complete facts and circumstances, including the court-martial charge sheet and separation packet, are not available for review with this case.  However, his records contain a duly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows:

	a.  He was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial on 9 August 1972 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, and issued a DD Form 258A (Undesirable Discharge Certificate).
	b.  He completed 2 years, 1 month, and 19 days of active military service and he had lost time from 10 January 1970 to 30 July 1972.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  He provides three statements of support as follows: 

	a.  A statement, dated 28 February 2012, from his sister who states he made a bad decision at the time and he has had successes and failures over the years, but he has striven over the years to improve his life.

	b.  A statement, dated 8 February 2012, from a friend who has known him for 31 years.  He describes the applicant as a good person who served his country in Vietnam and received a commendation medal. 

	c.  An undated statement from an individual who states he has known the applicant for 35 years.  He describes him as a loyal friend who has striven to turn his life around.  

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's record is void of the specific facts and circumstances surrounding his discharge action.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

2.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

3.  Although his discharge occurred a long time ago as he contends, the Army does not now nor has it ever had a policy to upgrade a characterization of service due to the passage of time. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting him 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)                                         AR20140005542



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ABCMR Record of Proceedings (cont)                                         AR20140005542



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