IN THE CASE OF:  

		BOARD DATE:    3 March 2015

		DOCKET NUMBER:  AR20140012628 


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 (UOTHC) to a general discharge (GD).

2.  The applicant states, in effect, that after he returned from Vietnam, he had drug and alcohol issues and as a result, started to go absent without leave (AWOL).  He has turned his life around and remains hopeful that his request will be granted.  

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and seven supporting statements.

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.  On 6 September 1967, the applicant was inducted into the Army of the United States.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant completed a tour of duty in Vietnam, and he received the following awards:

* Combat Infantry Badge
* Air Medal
* Purple Heart
* Bronze Star Medal

4.  While serving in Vietnam, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on: 
  
* 28 July 1968 for sleeping on guard duty
* 11 November 1968 for failure to obey a lawful order

5.  A DA Form 20B (Insert Sheet to DA Form 20 – Enlisted Qualification Record) (Record of Court-Martial Conviction) shows he was convicted by courts-martial of being AWOL from:

* 13 January 1969 to 4 March 1969
* 19 March 1969 to 15 April 1969
* 16 May 1969 to 20 August 1969

6.  The applicant was in pre-trial confinement from 21 August to 
7 September 1969.  After trial, he was sentenced to confinement from 
8 September to 25 November 1969.

7.  Immediately upon his release from confinement, the applicant went AWOL from 26 November 1969 to 3 October 1975, when he was apprehended by civil authorities.  He was returned to military control on 22 October 1975.

8.  The complete facts and circumstances of his discharge are not contained in the available records.  However, his records include a DD Form 214 showing he was discharged on 24 November 1975 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He completed 1 year and 7 months of total active service with 2,424 days lost.  His service was characterized as UOTHC.  

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

10.  The applicant provides seven supporting statements describing his commendable post-service conduct as a father and family man, and a community role model within the Santee Sioux youth center, and describing his devotion to the Santee Sioux Nation Tribal Headquarters as the Chief Executive Officer.  

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

	a.  Chapter 10 of that regulation provides, in pertinent part, 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.  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.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant's records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

3.  His post-service conduct appears to be commendable; however, post-service conduct alone is not normally a reason for upgrading a properly-issued discharge.  

4.  There is no evidence indicating that his drug and alcohol abuse contributed to his decision to go AWOL.  Even if drug and alcohol abuse did contribute to his decision to go AWOL, it would not be a basis for upgrading his discharge.

5.  The applicant received NJP twice, was convicted of three specifications of being AWOL, and later went AWOL for over 5 years.  Due to this serious misconduct, his service was unsatisfactory.  There is no 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 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)                                         AR20140007657



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ABCMR Record of Proceedings (cont)                                         AR20140012628



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