IN THE CASE OF:  	  

		BOARD DATE:  3 February 2015		  

		DOCKET NUMBER:  AR20140010553 


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 to a general discharge.

2.  The applicant states he was told he would not deploy to the Republic of Vietnam because he was the only male child in his family.  He subsequently received orders to deploy to the Republic of Vietnam and he went absent without leave (AWOL).

3.  The applicant provides a self-authored statement in support of his claim.

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 9 July 1969.
3.  On 24 September 1970, charges were preferred against the applicant for absenting himself from the U.S. Army Overseas Replacement Station, Fort Dix, NJ, for the period 14 January to 18 September 1970.

4.  On 24 September 1970, the applicant voluntarily, and without coercion, requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

5.  In his request for discharge, the applicant indicated he understood that by requesting a discharge he was advised of the implications attached to it and that if his request for discharge was accepted, he may be discharged under other than honorable conditions, and furnished an Undesirable Discharge Certificate.  He understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he may expect to encounter substantial prejudices in civilian life by reason of an undesirable discharge.  The applicant elected not to submit a statement on his behalf and he also declined the opportunity to consult with counsel.

6.  On 8 October 1970, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  On 22 October 1970, the applicant was accordingly discharged.

7.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial with an under other than honorable conditions discharge.  He completed 6 months and       4 days of creditable active military service with lost time for the period 14 January to 20 September 1970.  

8.  The applicant provides a self-authored statement in support of his claim in which he states:

   a.  He had one concern when he was drafted and that was that as an only son, if he was killed in action, his generation would be cut off.  It was his understanding that according to military law he was not allowed to enter military service unless he volunteered.  

   b.  He was drafted into the U.S. Army on 9 July 1969.  During the process of being drafted, he was asked by Lieutenant J_____ M_____ if he had any concerns about being drafted.  The applicant explained that he was an only son and that he had concerns about going into a war zone.  The lieutenant assured him that he would not go into the war zone and that he would be in a nearby country in a support capacity.  As a person who loves his country, the applicant agreed to serve under these terms.

   c.  He went to basic training and advanced individual training and he was awarded military occupational specialty 63G (Fuel One Electrical System Repair).  He subsequently received orders to Vietnam.  He immediately went to his company commander and told him his problem.  The commander asked him why he didn't come to him prior to receiving orders and the applicant stated that he did not see any reason to because everything was going as Lieutenant J____ M_____ said it would go.  The commander told him that since he had received his orders, there was nothing he could do.

   d.  The main reason he went AWOL and stayed AWOL for so long was that he was an only son.  A little while after arriving at Aberdeen Proving Ground, MD, he got very sick, with vomiting and weight loss.  He went to the clinic on post and he was told by the doctors that there was nothing wrong with him.  His illness was all psychological, yet he was prescribed valium for his condition.  He became addicted to valium right before he received orders to go to Vietnam.  He still had stomach problems, (he found out later he had an ulcer) yet he had a drug that would ease the pain. 

   e.  After he went AWOL, he was a drug addict.  This is part of the reason why he went AWOL and stayed AWOL for so long, because an Army doctor saw fit to treat a medical problem with the strong drug.  He continued to use drugs until he went to prison in 1994, 17 years ago.  The applicant requests that he be allowed to live the rest of his life in a little ease by granting him this benefit.  He does not have records of his ulcer operation, but he does have a scar.  

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 

10.  There is no evidence in the applicant's records and he provides no evidence which shows that he had previously lost family members due to military service.  In addition, he provides insufficient evidence to support his contention that he was prescribed valium and that he became addicted to valium prior to his scheduled departure to the Republic of Vietnam.


11.  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, 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 3-7b 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.
   
12.  President Franklin Roosevelt signed the Selective Training and Service Act of 1940 which created the country's first peacetime draft and formally established the Selective Service System as an independent Federal agency.  The mission of the Selective Service System is to provide manpower to the Armed Forces in an 
emergency, and to run an Alternative Service Program for men classified as conscientious objectors during a draft.  Selective Service would provide manpower to the military by conducting a draft using a list of young men's names gathered through the Selective Service registration process.  Virtually all men - ages 18 through 25 - must register.  The obligation of a man to register is imposed by the Military Selective Service Act, which establishes and governs the operations of the Selective Service System.

13.  The Selective Service System classifies, or rates, men according to their availability to serve.  Classification is the process of determining who is available for military service and who is deferred or exempted.  Classifications are based on each individual registrant's circumstances and beliefs.  Men are not now classified; a classification program would go into effect when Congress and the President decide to resume a draft.  Then, men who are qualified for induction would have the opportunity to file a claim for exemptions, deferments, and postponements from military service.  Classifications were used during the Vietnam War such as Class IV-A:  Prior service or sole surviving son.  

14.  Department of Defense (DoD) Instruction 1315.115 (Special Separation Policies for Survivorship) describes a set of regulations in the U.S. military that are designed to protect members of a family from the draft or from combat duty if they have already lost family members in military service.  The term Sole Surviving Son or Daughter refers to the only surviving child in a family in which the father or mother or one or more siblings meet at least one of the following criteria:

   a.  have been killed in action or have died when serving in the U.S. Armed Forces from wounds, accident, or disease;

   b.  are in a captured or missing-in-action status; and

   c.  have a permanent 100 percent service-related disability (including          100 percent mental disability) as determined by the VA or one of the Military Services, and are not gainfully employed because of the disability.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and it was determined that there is insufficient evidence to support this request.

2.  The applicant appears to confuse being an only male child with being a sole surviving son.  DoD Instruction 1315.115 describes a set of regulations in the U.S. military that are designed to protect members of a family from the draft or from combat duty if they have already lost family members in military service.  There is no evidence in the applicant's records and he provides no evidence that this was the case.  In addition, he provides insufficient evidence to support his contention that he was prescribed valium and that he became addicted to valium prior to his scheduled departure to the Republic of Vietnam.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  The applicant's record of service shows he was AWOL for the period            14 January to 20 September 1970.  Based on this record of indiscipline, the applicant's misconduct renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20140010553





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ABCMR Record of Proceedings (cont)                                         AR20140010553



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