BOARD DATE:	  20 January 2015

		DOCKET NUMBER:  AR20140008944 


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 to an honorable discharge.

2.  The applicant states he served in the Regular Army (RA) for almost two years when he reenlisted in 1971.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and an American Legion Certificate of Service for his honorable service in the United States Armed Forces.

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 enlisted in the RA on 15 August 1969 for a period of 3 years.  Upon completion of training, he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  He served overseas in Vietnam from 14 January 1970 through 3 December 1970.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty this period on 15 August 1969 and he was honorably discharged on 27 April 1971 to reenlist in the RA. 
He completed 1 year, 8 months, and 13 days of net active service this period.

4.  He reenlisted in the RA on 28 April 1971 for a period of 6 years.

5.  On 4 March 1975, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for being absent without leave (AWOL) from 23 May 1973 to 30 August 1973 and from 
6 September 1973 to 13 February 1975.

6.  On 27 February 1975, the applicant consulted with legal counsel.  He was informed of the charges against him for violating the UCMJ and that he was pending trial by court-martial.  He was advised of the rights available to him and of the option to request discharge for the good of the service in lieu of trial by court-martial.

	a.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  By submitting his request for discharge he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained, which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	b.  He was advised that he might:

* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration (VA)
* be deprived of his rights and benefits as a veteran under both Federal and State laws

   c.  He acknowledged he understood that, if his request for discharge was accepted, he might be discharged under other than honorable conditions and reduced to the pay grade of E-1.

	d.  He was also advised that he could submit statements in his own behalf and he elected to submit a statement.

   e.  The applicant and his counsel placed their signatures on the document.

   f.  The applicant's statement shows he wrote, "I tried, but I can't adjust to Army life.  I also have a lot of problems at home.  If I don't get out now I will only go again.  My mother is 68 and crippled and lives along [sic], she needs my help.  My wife ran away 3 years ago and I haven't seen her since."

7.  His immediate and intermediate commanders recommended approval of the applicant's request for discharge with the issuance of an undesirable discharge.

8.  The separation authority approved the applicant's request for discharge, ordered his reduction to the rank of private (E-1), and directed that his service be characterized as under other than honorable conditions.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 15 April 1975 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, with an under other than honorable conditions characterization of service.  He had completed 2 years and 27 days of net active service during this period and he had 691 days of time lost.

10.  A review of his military personnel record failed to reveal any evidence that he applied to the Army Discharge Review Board for review of his discharge within its 15-year statute of limitations.

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

	a.  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, a discharge under other than honorable conditions is normally considered appropriate.

   b.  Chapter 3 provides in:

    	(1)  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; and

    	(2)  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 contends his discharge should be upgraded because he served honorably in the RA for almost two years before he reenlisted.

2.  The evidence of record shows a DD Form 214 documents the applicant's 
1 year, 8 months, and 13 days of honorable active duty service in the RA from 
15 August 1969 through 27 April 1971.  Accordingly, his prior period of honorable enlisted service in the RA is acknowledged.  However, that prior period of service in the RA is not at issue nor is it under review in this instance.

3.  Records show he reenlisted in the RA on 28 April 1971 for a period of 6 years.

4.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial was both voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the reason for discharge and characterization of service were both proper and equitable.

5.  The applicant was issued a DD Form 214 that documents the period of his reenlistment in the RA from 28 April 1971 through 15 April 1975.

6.  During the period of service under review, the applicant was charged with  offenses punishable by a bad conduct or dishonorable discharge, he completed about 2 years and 1 month of his 6-year reenlistment obligation, he had 691 days of time lost (nearly 1 year and 11 months), and he was reduced to private (E-1) prior to his discharge.  Thus, the applicant's record of service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to either an honorable or general discharge.

7.  Therefore, in view of all of the foregoing, there is an insufficient basis for granting 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)                                         AR20140008944



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ABCMR Record of Proceedings (cont)                                         AR20140008944



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