BOARD DATE:	    6 January 2015

		DOCKET NUMBER:  AR20140007030 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states:

* during the Vietnam War, he was mentally stressed and when he got back, he could not cope with military life
* he was recently diagnosed with post-traumatic stress disorder (PTSD), which was rated at 70 percent, and he receives 100 percent disability compensation

3.  The applicant does not provide additional evidence. 

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 27 March 1970 and he held military occupational specialty 11B (Light Weapons Infantryman).  He attained the rank/grade of specialist four (SP4)/E-4. 

3.  He served in Vietnam from on or about 11 September 1970 to on or about 10 September 1971.  He was awarded or authorized the: 

* Vietnam Service Medal with two bronze service stars
* Republic of Vietnam Campaign Medal
* Combat Infantryman Badge
* Army Commendation Medal
* Bronze Star Medal
* Expert Marksmanship Qualification Badge with Rifle Bar

4.  Following his service in Vietnam, he was reassigned to the 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division, Fort Hood, TX. 

5.  On 9 December 1971, he departed his unit in an AWOL status but returned to military control on 13 December 1971.  On that same date, he accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from 9 to 13 December 1971.

6.  On 20 December 1971, he accepted NJP under the provisions of Article 15 of the UCMJ for breaking restriction. 

7.  On 4 February 1972, he departed his unit in an AWOL status and on 28 May 1972, he returned to military control.  However, while pending disposition of this charge, on 12 June 1972, he again departed his unit in an AWOL status and on 6 August 1972, he returned to military control.  

8.  On 2 October 1972, consistent with his pleas, he was convicted by a special court-martial of two specifications of AWOL from 4 February to 28 May 1972 and from 12 June to 6 August 1972.  The court sentenced him to confinement at hard labor for 120 days and a forfeiture of $85 per month for 3 months.  The convening authority approved his sentence on 20 November 1972.  

9.  On 12 December 1972, the convening authority ordered the unexecuted portion of the approved sentence to confinement at hard labor for 120 days, suspended until 29 January 1973.  

10.  On 4 September 1973, he departed his Fort Hood unit in an absent without leave (AWOL) status, but returned to military control on 5 September 1973. 

11.  On 5 September 1973, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL from 4 to 5 September 1973.

12.  On 4 January 1974, he departed his Fort Carson, CO unit in an AWOL status and on 3 February 1974, he was dropped from the Army rolls as a deserter.  

13.  He was apprehended by civil authorities in Arlington, TX, on 4 June 1974 and he was returned to military control at Fort Hood, TX.  

14  On 12 June 1974, court-martial charges were preferred against him for one specification of AWOL from 4 January to 4 June 1974. 

15.  On 19 June 1974, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with 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.  In his request for discharge he indicated:

* he was making the request of his own free will and he had not been subjected to any coercion by anyone
* he acknowledged he understood that if his discharge request were approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* he understood that if such discharge were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement on his own behalf and his counsel also submitted a statement on his behalf

16.  In his statement, he stated that when he went home from Fort Hood during the holidays he met a girl and decided to get married.  Her father would not give consent; so, he ran away with her.  He asked his platoon sergeant for help and he talked to her father and he said he would give consent if he (the applicant) returned to Fort Hood.  So he went back and ended up being court-martialed and spent time in the stockade.  He then went to Fort Carson where his wife was to have a child but she did not want to have the child in the Army hospital.  They were always out of money and argued about money.  He brought his wife back to Texas and just stayed AWOL because he knew he could not support his wife and a child.  They almost got separated several times and he did not want that to happen; so, he did not want to come back.  He just wanted to get out of the Army as fast and as far away as possible, in order to support his wife and child.  He fully understood if his discharge was approved he would receive an undesirable discharge and would not be eligible for benefits. 

17.  In his statement, his counsel highlighted his background, upbringing, education, marriage, and military service, including his awards and decorations and his service in Vietnam.  He stated that considering the applicant's Vietnam service and the absence of any civilian offenses, he requested the applicant receives the appropriate discharge. 

18.  On 20 and 21 June 1974, his immediate and intermediate commanders recommended approval of the discharge with the issuance of an Undesirable Discharge Certificate.

19.  On 24 June 1974, a Staff Judge Advocate reviewed the separation packet and found it legally sufficient. 

20.  On 27 June 1974, following the legal review and consistent with the chain of command's recommendations, the separation authority approved the applicant's request for voluntary discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

21.  The applicant was accordingly discharged on 12 July 1974.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with the issuance of an under other than honorable conditions characterization of service.  He was issued an Undesirable Discharge Certificate. This form confirms he completed 2 years, 11 months, and 19 days of total active service with 339 days of time lost.

21.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

22.  His medical records are not available for review with this case.  He provides no medical records (such as a separation physical, mental status evaluation, or other medical documents) with his application. 
23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, 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 an individual who was discharged for the good of the Service.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 shows he was charged with the commission of an offense 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

2.  The applicant chose to go AWOL on multiple occasions.  Despite a court-martial conviction and two instances of Article 15 for being AWOL, the applicant went AWOL a third time.  When court-martial charges were preferred against him, he chose the voluntary discharge in lieu of facing a court-martial.  

3.  He provides no documented evidence to show he had PTSD then or now.  However, he submitted a statement clearly indicating his continued AWOL was due to personal problems related to his marriage, wife, and the birth of his child.  He specifically stated he just wanted to get out of the Army as fast and as far away as possible, in order to support his wife and child.  Nowhere in his records is there evidence that his extensive history of AWOL was due to a behavioral/mental health problem.  

4.  An honorable character of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty for Army personnel and the under honorable conditions (general) characterization is appropriate to those Soldiers whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  The applicant's military service was marred with misconduct.

5.  Based on his overall record of indiscipline that included, in addition to the court-martial charges, one court-martial conviction, three instances of NJP, and an extensive history of AWOL/desertion, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable 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)                                         AR20140007030





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ABCMR Record of Proceedings (cont)                                         AR20140007030



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