IN THE CASE OF:    

		BOARD DATE:  27 January 2015	  

		DOCKET NUMBER:  AR20140006703 


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 upgrade of his undesirable discharge to an honorable discharge (HD).

2.  The applicant states:

	a.  he does not know why he did the things he did; he just was not thinking clearly;

	b.  he regret the problems he caused after he came back from Vietnam;

   c.  he just was not the same and his mind was not there;
   
   d.  he had a drinking problem that God has since solved;
   
   e.  he has a skin rash that he believes is from Agent Orange although the doctors says it is eczema; and
   
   f.  he is now 62 years old and desires an upgrade of his undesirable discharge to an HD.

3.  The applicant provides:

* self-authored statement
* DD Form 214 (Report of Separation from Active Duty)

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 was inducted in the Army of the United States on 11 September 1968.  He was trained in and served in military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 24 March 1969 to 16 March 1970.  It also shows that during his RVN tour he was promoted to the rank of specialist four (SP4/E-4) and this was his highest rank held.

4.  The applicant accepted non-judicial punishment (NJP) on 20 July 1970, for being absent with leave (AWOL) from on or about 2 -12 July 1970.

5.  His record contains a DA Form 458 (Charge Sheet) that was prepared preferring two court-martial charges against him for violating the following Articles of the Uniform Code of Military Justice (UCMJ) as indicated:

* Article 86 – for being AWOL from on or about 9 August to 29 October 1970
* Article – for departing AWOL from his unit with the intent to remain away permanently (desertion) from on or about 30 October 1970 to 21 February 1976

6.  His record includes a Standard Form 88 (Report of Medical Examination) dated 4 March 1976.  It shows he underwent a separation physical and was medically cleared for separation.

7.  On 10 March 1976, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.

8.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued an undesirable discharge and stated the following in a personal statement:

* I don't want to stay in the Army
* I do not want rehabilitation in the Army
* I will accept an undesirable discharge
* I waive the 72 hour waiting period
* I served in Vietnam for one year and received a commendation medal
* I didn't have any remarks against me overseas
* I have four kids, one who solely depends on me and his mother cannot work so I need to get out of the Army so I can work

9.  On 26 March 1976, the separation authority approved the applicant's request for discharge and directed his discharge under the provisions of Army Regulation 635-200, chapter 10, in the lowest enlisted grade with an undesirable discharge.

10.  On 13 April 1976, the applicant was discharged accordingly.  He completed 1 year, 11 months, and 8 days of net active service with 2,035 days of time lost.

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

	a.  Chapter 10 states 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.  At the time, an undesirable discharge was normally given.

	b.  Paragraph 3-7a provides that an HD 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 of 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 his undesirable discharge should be upgraded to an HD because he doesn't know why he departed AWOL from his unit after he returned from the RVN.  However, his record contains no evidence to show he suffered from any medical or mental condition that would have caused him to unknowingly commit any acts.  In fact, he was medically cleared for separation.  Plus, he indicated he needed to get out of the Army so he could work to support his family.  Accordingly, his claim is insufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL for an extensive period totaling 2,035 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a general discharge or HD at the time of his discharge, nor would it be appropriate to upgrade his discharge now.

4.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140006703





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ABCMR Record of Proceedings (cont)                                         AR20140006703



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