IN THE CASE OF:	  

		BOARD DATE:	  11 December 2014

		DOCKET NUMBER:  AR20140007786 


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 to a general discharge.

2.  The applicant states:

   a.  He made a mistake and he has changed his life.  He is providing a brief summary of his military tour before and after his tour in Vietnam.  He volunteered for the U.S. Army right after graduating high school.  He knew that it was possible he would eventually be sent to Vietnam.  He was made to believe that he would have a choice to enter a military occupational field based on his highest test results.  This was far from the truth.  He scored in the high 80's for Stock Control and Accounting.  The next highest test result was for Engineering.  After completing basic combat training he was sent to Fort McClellan, AL, for infantry training.  Yes, his hopes were down, but he didn't give up.

   b.  He arrived in California late because the young lady he was seeing at the time was very near giving birth to his first daughter.  She was born on 9 December and shortly after he left for Oakland, CA, to prepare for his tour in Vietnam.  His decision to arrive late was in violation of military codes, but he wanted to be there for the birth of his child, not knowing what would befall him in Vietnam.  He tried to make the best of his tour in Vietnam until after returning from the field, while playing basketball, he broke out in hives.  For months he was given a 15-day profile to keep him out of the field until it could be determined why this was happening.  A few months later the 4th Infantry Division was being pulled out of Vietnam and Soldiers with less than 120 days were being sent back to the states.
   c.  His next duty station was for assignment to Fort Carson, CO, but due to overcrowding he requested to be assigned to Fort Benning, GA.  Upon his arrival there, he was assigned to the 2nd Battalion, 10th Artillery.  The company commander made him the executive officer's driver to the artillery range.  This didn't sit well with the sergeant first class (SFC) who wanted a sergeant, pay grade E-5, to have that job instead of him.  The other drivers were all white males and the SFC wanted it to stay that way.  A few weeks later he went to Detroit, MI, for the weekend, and became short on funds to return to Fort Benning.  

   d.  An individual is not considered to be absent without leave (AWOL) until 24 hours have passed.  Early that Monday morning he went to Fort Wayne, MI, and requested financial assistance to return to Fort Benning.  He was told they didn't want him back there.  The officer making the call stated it was the SFC in charge who stated they didn't want him back there.  Their battery commander was on leave at that time.

   e.  He knows he has made some bad choices and he doesn't make excuses for his behavior.  He believes that if he had returned to Fort Benning he would have completed his military tour honorably.  He is not one to play the racist games, but he believes racism played a very big part in the SFC's decision on not wanting him to return.  If it were possible for individuals to undo their wrongs and make them right, there would be many individuals trying to do so.  He regularly attends church seeking God to be his all and knowing that without God his life is nothing.

3.  The applicant provides two character reference letters.

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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army on 3 June 1969, for 3 years.  He was awarded military occupational specialty 11B (light weapons infantryman).
3.  On 2 January 1970, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 16 to 31 December 1969.

4.  He served in Vietnam from 15 January 1970 through 22 November 1970.  He was promoted to pay grade E-4 on 18 July 1970.

5.  He was reported AWOL on 1 March 1971 and on the same day he was dropped from the rolls of his organization.  He was returned to military control on 2 March 1971.

6.  On 2 April 1971, he accepted NJP under Article 15, UCMJ, for being AWOL from 1 to 2 March 1971.

7.  On 19 May 1971, he was dropped from the rolls of his organization as a deserter.  On 17 August 1971, he was returned to military control.

8.  His record is void of the facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A Standard Form 88 (Report of Medical Examination) which shows he underwent an examination on 30 August 1971 for the purpose of a chapter 10 separation.  The form noted no psychiatric disease was demonstrated on that examination.  There were no physical or mental defects which warranted medical disposition.  He was found qualified for separation.

   b.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged in pay grade E-1 on 12 October June 1971, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10.  His service was characterized as under conditions other than honorable.  He was credited with completing 1 year, 11 months, and 2 days of net active service and 133 days of time lost.

9.  He provides two character reference letters wherein the individuals attested that he served his country proudly during Vietnam and that he made some choices after returning from Vietnam that they know the applicant wished he could change.  He had made some positive changes in his life, he was good brother and loyal friend, and he was a very faithful person.

10.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitation for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions (UOTHC), the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  A UOTHC would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances surrounding his discharge; however, it appears after charges were preferred against him and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a general discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  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)                                         AR20140007786





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ABCMR Record of Proceedings (cont)                                         AR20140007786



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