IN THE CASE OF:	  

		BOARD DATE:	  5 February 2015

		DOCKET NUMBER:  AR20140010306 


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 undesirable discharge.

2.  The applicant states he was in Vietnam for 1 year.

3.  The applicant provides:

* character reference letters
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 was inducted into the Army of the United States on 17 March 1969.  He completed his training and was awarded military occupational specialty 11B (light weapons infantryman).

3.  On 5 September 1969, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from 8 August 1969 to 4 September 1969.

4.  He arrived in Vietnam on 9 September 1969.

5.  On 8 July 1970, he was convicted by a special court-martial of disobeying a lawful command and being AWOL from 4 April 1970 to 7 May 1970.  He was sentenced to confinement at hard labor for 45 days and reduction to E-1.  On 9 July 1970, the convening authority approved the sentence, but suspended the sentence to confinement for 45 days.

6.  On 3 January 1971, he was convicted by a special court-martial of being AWOL from 1 August 1970 to 14 October 1970.  He was sentenced to confinement at hard labor for 3 months, forfeiture of $50.00 pay per month for 3 months, and reduction to E-1.  On 13 January 1971, the convening authority approved the sentence, but suspended the sentence to confinement for 3 months.

7.  He departed Vietnam on 5 January 1971.

8.  He was AWOL on 5 April 1971 and returned to military control on 27 April 1971.  He was AWOL again on 4 May 1971 and returned to military control on 1 June 1971.  Charges were preferred against him on 10 June 1971 for the AWOL periods.  Trial by special court-martial was recommended.

9.  On 14 June 1971 after consulting with counsel, he 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.  He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated:

* he wanted to get out of the Army because he had been in trouble ever since going overseas
* he was always getting money taken away from him and having to take orders from some person who is no more a man than he was
* he had been his own boss since he was 14 years old and hasn't had a father since then
* he had two court-martial convictions and he doesn't know how many Article 15s
* if he stayed in he would get into more trouble than he could handle

10.  On 26 July 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

11.  On 2 August 1971, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 11 months and 8 days of total active service with 188 days of lost time.

12.  There is no evidence in the available records showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  He provided seven character reference letters from friends and a co-worker who attest:

* he is reliable, a good friend, and an upstanding citizen
* he is honest and very responsible
* he is always on time and an upstanding man
* he was a great employee
* he is a very nice guy and a hard worker

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

	a.  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, the 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 to an individual who was discharged for the good of the service.

	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 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 character-reference letters submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

2.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and conformed with applicable regulations.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  His Vietnam service was noted.   However, his record of service also included one NJP, two special court-martial convictions, and 188 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20140010306



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ABCMR Record of Proceedings (cont)                                         AR20140010306



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