IN THE CASE OF:	   

		BOARD DATE:	  10 March 2015


		DOCKET NUMBER:  AR20140010550 


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:

* he was honorably discharged from the Army on 27 February 1970; he reenlisted for 6 years and went home to Baltimore on leave
* not everyone treated him like a war veteran; they treated him like he was someone from another country
* two days after being home he got sick and the doctor diagnosed him with German measles; he stayed sick for 2 weeks
* when he got better, he went to Fort Meade to get his pay and a plane ticket to get back to his unit 
* he returned home that night and began experiencing a severe rash that continued for 4 days
* he went back to Fort Meade and turned himself in from being absent without leave (AWOL)
* he was in the barracks with post privileges and he met a guy who was going to Baltimore so he rode with him
* he started having health issues and the doctor told him he had alcohol poisoning
* his immune system was so weak he had to take steroids; he was just too sick to return to duty 

3.  The applicant provides:
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A letter of support
* Undesirable Discharge Certificate
* Separation packet and orders
* DA Form 20 (Enlisted Qualification Record) 

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 and entered active duty on 18 July 1968.  He was trained in and held military occupational specialty 11B (Light Weapons Infantryman). 

3.  He served in Vietnam from on or about 13 December 1968 to on or about 11 December 1969.  He was honorably discharged on 27 February 1970 for the purpose of immediate enlistment in the Regular Army.  His DD Form 214 shows he was awarded or authorized the: 

* National Defense Service Medal
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal with Device (1960)
* Combat Infantryman Badge
* two overseas service bars
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

4.  He enlisted in the Regular Army for 4 years while at Fort Carson, CO. 

5.  On 10 April 1970, he departed his unit in an AWOL status and on or about 9 May 1970, he was dropped from rolls of his unit as a deserter.  He ultimately returned to military control on or about 3 March 1971.  He was assigned to the Special Processing Battalion, Fort Meade, MD. 
6.  On 4 March 1971, he was interviewed by his commander.  However, he indicated that he did not want to answer any questions. 

7.  On 10 March 1971, court-martial charges were preferred against him for being AWOL from 10 April 1970 to 3 March 1971. 

8.  On 11 March 1971, he underwent a separation physical.  His Standard Form 88 (Report of Medical Examination) shows he was found medically qualified for separation.  He was assigned a PULHES of "1-1-1-1-1-1" and a physical category code of A. 

9.  On 11 March 1971, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, 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 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, the applicant acknowledged:

* he was making this request on his own free will and he had not been subjected to any coercion whatsoever
* he understood that if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he acknowledged he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he acknowledged he understood he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement in his own behalf

10.  On an unknown date, the separation authority approved the applicant's voluntary request for discharge under the provisions of Army Regulation         635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  Although the approval memorandum is not available for review, it appears the separation authority directed the applicant be reduced to the lowest enlisted grade, if applicable, and furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 2 April 1971. 

11.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by a court-martial with an Undesirable Discharge Certificate.  He completed 2 months and 8 days of net active service this period with 327 days of lost time.

12.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge processing within that board's 15-year statute of limitations. 

13.  He provides a statement from an individual who has known him for 15 years. He describes him as a man of good moral character.  

14.  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, an undesirable discharge is normally considered appropriate.

	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 applicant's record shows he was charged with the commission of an offense 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.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his record of service.

2.  There is no evidence that shows the applicant suffered from any medical issues during the referenced period.  In fact, he underwent a separation physical on 11 March 1971 and he was found medically qualified for separation.  Likewise, there is no evidence of record and none was provided with this application to show he suffered an injury or was diagnosed with an illness or any other medical condition that rendered him unable to reasonably perform the duties required of his former grade or military specialty or caused him to go AWOL. 

3.  The applicant was not discharged because of any medical condition.  He was discharged because he chose to go AWOL and when he was returned to military control he chose to be discharged.  His service was interrupted by his AWOL and request for voluntary discharge.   

4.  The available evidence clearly shows he elected to go AWOL.  Additionally, upon preferring court-martial charges against him, he exercised his right to consult with counsel.  His options were to face the court-martial that could have adjudged a dishonorable or a bad conduct discharge or submit a voluntary request for discharge.  He voluntarily chose the discharge.  Those were choices that he made.  No medical issues were raised by him during the interview with the commander upon his return from being AWOL. 

5.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  In view of the foregoing, there is no basis for granting him 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)                                         AR20140010550





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ABCMR Record of Proceedings (cont)                                         AR20140010550



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