IN THE CASE OF:	  

		BOARD DATE:	 9 April 2015 

		DOCKET NUMBER:  AR20140013854 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states:

	a.  He is a decorated Vietnam veteran.  After enlisting in the Army at the age of 17 in December 1968, he served continuously in various Army bases in several roles.  Some of the things he saw and experienced as a photographer made him think and react in a less than rational way and resulted in some poor decisions.

	b.  His story began at Fort Dix, NJ, after returning from Vietnam.  The civilian woman in charge of the photo lab, where he was assigned, dressed in men's clothing; acted in a dominating, masculine manner; and made it very hard for him and others to work.  He addressed the issue with the company commander but he was told there was nothing he could do.

	c.  He went home on 30 days of leave to Columbia, PA, in 1972 and at the time, the area was hit with a hurricane that resulted in flooding and devastation.  He could not return to base.  To avoid the inevitable conflict he knew was waiting when he returned late, he went absent without leave (AWOL).  Some 7 months later, he surrendered at Fort Meade, MD. 

	d.  He is sorry for his actions.  He knew then and he knows now that was the wrong decision.  His circumstances and emotional stress greatly influenced his choice and he did not see any other way to resolve the issue.  Some 5 years later, he tried to reenter military service but could not do so due to this violation of his term of service.  He has been trying to resolve this issue for 40 years and he wants his family to know that he served his country proudly.  He hopes the Board would take into account the fact that he served in combat, received decorations, and completed 4 years of service.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 15 February 1973.

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's records show he was born in December 1950 and enlisted in the Regular Army (RA) for 3 years at 17 years and 6 months of age on 14 June 1968.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11E (Armor Crewman). 

3.  He served in Germany from 15 November 1968 to 25 July 1970.  While in Germany, he was honorably discharged on 24 March 1969 for the purpose of immediate reenlistment.

4.  His DD Form 214 for this period of service shows he completed 9 months and 10 days of active service.  It also shows he held MOS 11E and was awarded or authorized the: 

* National Defense Service Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14)

5.  He reenlisted in the RA for 3 years on 25 March 1969.  He was 18 years and 4 months of age at the time.  He continued his Germany tour and served in both MOS 11E and MOS 84G (Photo Lab Specialist).  He was again honorably discharged on 16 June 1970 for the purpose of immediate reenlistment.

6.  His DD Form 214 for this period of service shows he completed 2 years and 22 days of active service.  It also shows he held MOS 84G and he was awarded or authorized the Sharpshooter Marksmanship Qualification Badge w/Rifle Bar (M-14).

7.  He reenlisted in the RA on 17 June 1970.  He was 19 years and 6 months of age at the time and he held the rank/grade of specialist five (SP5)/E-5. 

8.  He served in Vietnam from 5 September 1970 to 1 September 1971.  He was assigned as a Photo Lab Specialist to the 221st Signal Company.  He was awarded or authorized the: 

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* two overseas service bars 

9.  Following completion of his Vietnam tour, he was reassigned to Headquarters Company, Headquarters Command, Fort Dix, NJ. 

10.  On 30 May 1972, he was reprimanded by his company commander for absenting himself from duty on 17 May 1972 without authority.  The reprimand stated that he had failed to be at his appointed place of duty and lacked good judgment.

11.  On 18 June 1972, he departed his unit in an AWOL status and on 18 July 1972, he was dropped from the rolls as a deserter.  He surrendered to military authorities on 21 January 1973.

12.  On 24 January 1973, his command preferred court-martial charges against him for one specification of AWOL from 18 June 1972 to 21 January 1973. 

13.  On 26 January 1973, 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 maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, he acknowledged he understood:

* if the discharge request was approved he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate
* he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life
* he elected not to submit a statement on his own behalf

14.  On 4 February 1973, his immediate commander recommended approval with the issuance of an Undesirable Discharge Certificate.  The immediate commander stated that the applicant was triable by court-martial under circumstances that could lead to a bad conduct or a dishonorable discharge.

15.  Consistent with the applicant's chain of command's recommendations, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, 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 15 February 1973, the applicant was accordingly discharged.

16.  The DD Form 214 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 2 years and 22 days of active service during this period and he had 217 days of lost time.  He also completed 2 years and 3 days of prior active service.

17.  On 30 November 1978 and 2 November 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

18.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, a UD is normally considered appropriate.
	a.  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

	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.  The applicant's records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 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 overall record of service.

2.  The applicant's service in Vietnam is noted.  Additionally, the difficulties he encountered at the photo lab at Fort Dix are also noted, even if unsupported by any evidence.   However, there would have been other legitimate avenues to address such issues had he elected to use them.  He could have also elected trial by a court-martial if he had believed there were extenuating circumstances that led him to go AWOL.

3.  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.  Therefore, he is not entitled to 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)                                         AR20140013854



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ABCMR Record of Proceedings (cont)                                         AR20140013854



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