IN THE CASE OF:	  

		BOARD DATE:	  31 March 2015

		DOCKET NUMBER:  AR20140014680 


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 his undesirable discharge (UD) be upgraded.

2.  The applicant states he had prior U.S. Army Reserve (USAR) service before enlisting in the Regular Army.  He served in Vietnam with the 20th Combat Engineer Battalion before being assigned to Germany, where he admits he had some problems.  He was offered a mental discharge but wished to remain a Soldier so he volunteered to return to Vietnam.  While in Vietnam the second time he had gone to an off-base club and fell asleep.  He was picked up by the military police and told he was going to be charged for being absent without leave because of this incident.  Since he did not want to go to jail he accepted the discharge he was offered.  He states he was not smart enough to take many of the opportunities and training the Army offered but he is proud to have served.  He has now been married for 44 years and is highly thought of within his community.

3.  The applicant provides a copy of a City of Americus Honorary Counsel Member Proclamation.

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 18 October 1964, the applicant enlisted in the USAR at age 19 with 8 years of formal education.

3.  He enlisted with the military occupational specialty option for airborne but was unable to complete that training.  He did complete training in military occupational specialty 76A (Supply Clerk).  

4.  On 15 May 1965, upon completion of his USAR initial active duty for training, the applicant enlisted in the Regular Army and completed training as a 12A (Pioneer).

5.  The applicant's record contains copies of nonjudicial punishment proceeding under Article 15, Uniform Code of Military Justice as follows –

* 30 November 1965, for being absent from his unit for an hour and 15 minutes
* 28 January 1966, for disobeying a lawful order to remain in the company area (in Vietnam)
* 2 June 1966, for leaving his sentinel post before being properly relieved (in Vietnam)
* 18 June 1966, for operating a vehicle in a reckless manner resulting in an accident (in Vietnam)
* 27 July 1966, for disobeying a lawful order by being in an off limits area (in Vietnam)
* 8 March 1968, for being absent without leave (AWOL) from 22 January 1968 to 14 February 1968
* 25 March 1968, for being AWOL from 16 to 23 March 1968
* 20 May 1968, for being absent from his place of duty for 25 minutes (in Germany)
* 7 August 1968, for assault, in concert with others, on fellow Soldiers (in Germany)
* 3 September 1968, for being absent from his place of duty from 0001 hours on 2 September 1968 to 0400 hours on 3 September 1968 (in Germany)

6.  On 7 November 1967, a special court-martial found the applicant guilty of specification of being AWOL from 4 January 1967 to 24 August 1967 and 
10 September to 26 September 1967.

7.  In addition to the NJP's and special court-martial shown, the applicant is also shown to have been AWOL from 23 November 1967 to 6 December 1967.

8.  The applicant was AWOL (in Vietnam) from 2 January 1969 to 7 February 1969.  Court-martial charges were preferred for this AWOL.   

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions (UOTHC) and be furnished an undesirable discharge (UD) certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

10.  The separation authority approved the applicant's discharge request and directed he be reduced to private one (E-1) and receive a UD.

11.  The applicant was discharged on 4 May 1969 with a UD.  He is shown to have 3 years and 28 days of creditable service this period with 323 days of lost time.  His DD Form 214 shows 10 periods of lost time but does not include his last period of AWOL.

12.  The applicant's DA Form 20 (Enlisted Qualification Record) contains conflicting, illegible, and/or incomplete information as to his duty assignments.  At block 31, his foreign service is shown as Vietnam from 9 December 1965 through 8 December 1966, Germany from 26 March 1968 through 18 September 1968, and Vietnam from 6 November 1968 through 5 November 1968.  It lists 5 periods of AWOL and 3 periods of confinement.

13.  On 27 January 1978, the Army Discharge Review Board (ADRB) reviewed the applicant's file under the provisions of the Special Discharge Review Program and denied the applicant's request for an upgrade.  



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

   a.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	b.  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

	c.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an UD certificate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

2.  The applicant's entire period of Regular Army service was significantly marred by his 10 NJP's, his special court-martial, and his 323 days of lost time.  He had several significant incidents while serving in Vietnam during both of his tours.  The applicant has not presented and the record does not contain any evidence to mitigate the misconduct.

3.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offense for which he requested discharge and is appropriate for the applicant's overall record of military service.







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)                                         AR20140014680



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ABCMR Record of Proceedings (cont)                                         AR20140014680



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