IN THE CASE OF:	  

		BOARD DATE:	  18 December 2014

		DOCKET NUMBER:  AR20140007209 


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 under other than honorable conditions discharge.

2.  The applicant states:

* after completing his training, he served two tours in Vietnam, the second of which was extended for 6 months
* he was wounded twice in Vietnam 
* when he came back to Fort Campbell, he was absent without leave (AWOL) for 1 day and he was busted down from E-5 to E-1
* the other guy that went AWOL with him only received extra duty
* he knows what he did was wrong; but when asked to go to the front line, he did not run to Canada
* he never asked anyone for help and he was never on drugs; he knows those who went to Canada got to return home
* he needs help because he has cancer that is related to Vietnam; he is also losing his eyesight and he has a bad heart  

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Separation or Discharge), ending on 8 February 1970 and 30 July 1973
* Congressional correspondence


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 (RA) on 7 May 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11E (Armor Crewman).  

3.  Following the completion of his MOS training, he served in Vietnam for         11 months and 27 days.  He was advanced to specialist four/E-4 on 9 April 1969. Following his service in Vietnam, he was reassigned to Fort Campbell, KY.  

4.  At Fort Campbell, he was honorably discharged on 8 February 1970 for the purpose of immediate reenlistment.  His DD Form 214 for this period of service shows he completed 1 year, 9 months, and 2 days of active service.  He was awarded or authorized the:

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal with Device 1960
* Two overseas service bars
* Purple Heart

5.  He reenlisted in the RA for 6 years on 9 February 1970.  It appears he completed a second tour in Vietnam, where he was assigned to the 3rd Squadron, 11th Armored Cavalry Regiment; however, the exact dates of his service in Vietnam cannot be determined.  

6.  On 6 January 1972, while in Vietnam, he accepted nonjudicuial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for driving a 5-ton tractor in a reckless manner. 

7.  On 12 July 1972, at Fort Bragg, NC, while holding the rank/grade of SP5/E-5, he accepted NJP under the provisions of Article 15 of the UCMJ for operating his privately owned vehicle while drunk in a reckless manner. 

8.  On 3 September 1972, while assigned to Fort Bragg, NC he departed his unit (548th Engineer Battalion) in an AWOL status and on 1 October 1972, he was dropped from the Army rolls as a deserter. 

9.  He appears to have returned to military control on or about 29 January 1973 at Fort Campbell, KY.  He was assigned to the U.S. Army Personnel Confinement Facility (USAPCF).  

10.  On 13 April 1973, he was convicted by a special court-martial of one specification of AWOL from 3 September 1972 to 29 January 1973.  The court sentenced him to confinement at hard labor for 45 days (suspended) and a reduction to the rank/grade of private first class (PFC)/E-3 (suspended).  The convening authority approved his sentence on 8 May 1973.

11.  On 7 May 1973, he departed the USAPCF in an AWOL status.  He was dropped from the rolls as a deserter on the same day. 

12.  On 26 June 1973, the Federal Bureau of Investigation (FBI) notified the Army that he was apprehended on 25 June 1973 in Coeburn, VA and he was confined at the city jail in Coeburn, VA.  The FBI report states: 

Subject reportedly stated he would never return to the military and formerly in possession of sawed-off shotgun and carries handgun in auto.  Consider armed and dangerous and an escape risk. 

13.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents: 

	a.  A "Waiver of Rights to Counsel" statement, dated 29 June 1973, in relation to his apprehension.  He indicated that he did not want to consult with a lawyer and he did not want to answer questions or make a statement.  

	b.  A recommendation by his immediate commander to try him by a special court-martial, together with a "Request for Discharge for the Good of the Service," dated 12 July 1973, which shows he consulted with legal counsel and 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

   c.  USAPCF Special Orders Number 145, issued on 27 July 1973, reduced him to the rank/grade of private/E-1 effective 25 July 1973, by reason of having received an undesirable discharge. 

	d.  Headquarters, Fort Meade, MD Special Orders Number 148, issued on   26 July 1973, ordered his discharge under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with a character of service of under other than honorable conditions, effective 30 July 1973.

	e.  A duly-constituted DD Form 214 shows he was discharged on 30 July 1973 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a trial by court-martial with a character of service of under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  This form also shows he completed 2 years, 10 months, and 15 days of creditable active service during this period and he accrued 217 days of lost time under Title 10, U.S. Code, section 972. 

14.  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. 

15.  Army Regulation 635-200 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.  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, an under other than honorable conditions discharge is normally considered appropriate.

	a.  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.

	b.  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 complete facts and circumstances surrounding his discharge action; however, it is clear that he was AWOL and dropped from the Army rolls as a deserter on 7 May 1973.  It is equally clear that court-martial charges were preferred against him and/or 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.  His service record contains sufficient documentary evidence to show he 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 presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  With respect to his arguments:

	a.  He was not reduced from E-5 to E-1 because he was AWOL for 1 day.  The evidence of record clearly shows he was AWOL and a deserter from 7 May 1973 to 28 June 1973 when he was apprehended (not surrendered).  This period is clearly more than 1 day.

	b.  His service in Vietnam and his award of the Purple Heart are noted; however, this did not excuse his multiple instances of AWOL.  The Army never had a policy wherein a person who served in combat and was awarded the Purple Heart was entitled to go AWOL. 

	c.  More importantly, not only was the applicant a SP5/E-5 with combat experience and a prior period of enlistment, and not only did he previously go AWOL from 3 September 1972 to 29 January 1973 - for which he was convicted by a court-martial and sentenced to confinement - but he also had no intention, at least according to the FBI report, of returning to military control. 

	d.  While it is true that some individuals at the time elected not to serve in the military and left for Canada, the actions of those individuals had no bearing on him.  His discharge characterization was a consequence of his own action of violating the UCMJ by going AWOL.  There would have been other legitimate avenues to address his issues had he chosen them.

4.  Based on his record of indiscipline, 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 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)                                         AR20140007209





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ABCMR Record of Proceedings (cont)                                         AR20140007209



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