IN THE CASE OF:	  

		BOARD DATE:	  8 January 2015

		DOCKET NUMBER:  AR20140009068 


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 under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

* he has had poor treatment since Vietnam and he has a prior DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) showing his character of service as honorable
* no orders were given other than "go home and you don't need to come back"
* he was told he was eligible for an upgrade of his discharge
* previous mental illness and physical injuries prevented an earlier request
* he served his country honorably and he followed orders upon his return from Vietnam only to be told years later that he had been absent without leave (AWOL)

3.  The applicant provides his DD Forms 214 for the periods ending 29 November 1969 and 16 April 1976.

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.  Following a period of honorable active service in the Army of the United States, the applicant enlisted in the Regular Army on 30 November 1969.  He provided a copy of his DD Form 214 for the period ending 29 November 1969 that shows he received an honorable discharge.

3.  He served in Vietnam during the period 23 October 1969 through 22 January 1970.

4.  A DD Form 458 (Charge Sheet), dated 12 March 1976, shows he was charged with being AWOL from on or about 23 January 1970 until on or about 10 March 1976.

5.  On 12 March 1976, 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 Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and the procedures and rights available to him.

6.  On 17 March 1976, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge he indicated:

* he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person
* he acknowledged he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions
* he acknowledged he understood that if the discharge request were approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he understood he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he elected to submit a statement in his own behalf

7.  In his statement, he indicated:

* his feelings toward the Army were very negative and he wanted to get out of the Army because he could not adjust to military life
* he would be AWOL again if returned to duty
* he understood he would lose benefits, including a headstone, loans, and a burial flag
* he discovered that his fiancée was pregnant and his mother had leukemia with an unfavorable prognosis – he was unable to bring himself to a decision to return to the violence of Vietnam considering his family situation
* he felt his personal responsibilities at home were more pressing than his obligation to return to the Army after his mother's death and the birth of his daughter

8.  On 24 March 1976, his immediate and intermediate commanders recommended approval of his request with the issuance of a General Discharge Certificate.

9.  On 30 March 1976, his senior commander recommended approval of the applicant's discharge and the issuance of an Undesirable Discharge Certificate.

10.  On 1 April 1976, the separation authority approved the applicant's request for voluntary discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200, chapter 10, and directed his reduction to the lowest enlisted grade and the issuance of an Undesirable Discharge Certificate.

11.  On 16 April 1976, the applicant was accordingly discharged.  His DD Form 214 for this period shows he was discharged for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 and issued an Undesirable Discharge Certificate.  He completed 1 year, 2 months, and 20 days of active service during this period and he had 2,240 days of lost time and 29 days of excess leave.

12.  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.

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

	a.  Chapter 10, in effect at the time, provided that a member who had 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 in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.

	b.  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.

	c.  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.  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 admitted to being AWOL and elected to be discharged.  His records show he was well advised and fully aware of the consequences of his decisions.

2.  Due to his lengthy period of AWOL, his conduct and performance were not satisfactory.  His character of service was properly determined solely based on his military record.

3.  There is no documentary evidence of prior mitigating circumstances related to his AWOL that would warrant changing the character of his service.  In his statement at the time he indicated he was unable to bring himself to return to Vietnam considering his family situation indicating he possibly knew there was no “need to come back.”  Therefore, there is an insufficient evidentiary basis upon which to grant 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 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)                                         AR20140009068



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ABCMR Record of Proceedings (cont)                                         AR20140009068



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