IN THE CASE OF:	  

		BOARD DATE:	  30 April 2015

		DOCKET NUMBER:  AR20140016115 


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:

	a.  He served a tour with the U.S. Navy for 3 plus years and he then enlisted in the Regular Army.  While serving in the Army he became aware that his wife was using his allotment checks to keep another man.  He took 30 days of leave to resolve the issue but could not locate her.  He became angry and went absent without leave (AWOL) trying to find her.  When he got close, she contacted the authorities and he was arrested and sent back to Fort Knox, KY to face a court-martial.  The military judge gave him a choice between a general discharge and return to service for 6 years to make up the 20 months of AWOL plus a reenlistment time that included 2 years in Vietnam.  He agreed to reenlist and serve the time in order to secure an honorable discharge.

	b.  About 2 years after his return to Army service, his helicopter was shot down in Vietnam.  He was captured and spent about 5 years in various North Vietnamese prisoner of war (POW) camps, including South Vietnam, North Vietnam, Laos, and Cambodia.  President Ford negotiated his release (with thousands of other American POWs) in 1975.  His time as a POW and the injuries sustained through torture during his imprisonment prevented him from completing his 6 year commitment.  He was told the records from his Article 15 hearing were lost in the fire in St. Louis.  However, he believes unit morning reports may still exist to verify his statements. 
3.  The applicant provides his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), ending on 27 November 1967 and 2 November 1972. 

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 enlisted in the U.S. Navy on 12 July 1962.  He was honorably released from active duty on 9 July 1965 and he was transferred to the U.S. Navy Reserve to complete his remaining service obligations. 

3.  He enlisted in the Regular Army for 3 years on 24 June 1966.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76S (Auto Repair and Parts Specialist). 

4.  He served in Vietnam from on or about 20 October 1966 to on or about 22 September 1967.  He was assigned to the 561st General Supply Company and the 90th Combat Support Company. 

5.  Following completion of his Vietnam tour, he was reassigned to Fort Hood, TX.  While at Fort Hood, he was honorably discharged on 27 November 1967 for the purpose of immediate reenlistment.  

6.  His DD Form 214 for this period of service shows he completed 1 year, 5 months, and 4 days of active service.  It also shows he was awarded or authorized the: 

* National Defense Service Medal
* Vietnam Service Medal
* Vietnam Campaign Medal
* Marksman Marksmanship Qualification Badge with Rifle Bar (M-14)
7.  He reenlisted in the Regular Army for 6 years on 28 November 1967.  He was reassigned to Headquarters and Company A, 123rd Maintenance Battalion, Fort Hood.

8.  On 5 September 1968, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.

9.  On 17 October 1968, he departed his unit in an AWOL status and on 16 November 1968, he was dropped from the rolls as a deserter.  He returned to military control in Oldham County, KY, on 15 January 1969.  He was placed in pre-trial confinement at Fort Knox from 15 January 1969 to 13 February 1969. 

10.  On 14 February 1969, consistent with his plea, he was found guilty and convicted by a special court-martial of one specification of AWOL from 17 October 1968 to 14 January 1969.  The court sentenced him to a reduction to private first class/E-3 and restriction for 60 days.  The convening authority approved his sentence on 24 February 1969.

11.  On 23 October 1969, he departed Fort Knox en route to the U.S. Army Pacific.  He subsequently served in Vietnam from on or about 31 October 1969 to on or about 2 April 1971.  He was assigned to the 701st Maintenance Battalion, 1st Infantry Division. 

12.  Following his Vietnam tour, in May 1971, he was reassigned to 1st Battalion, 18th Artillery, Fort Sill, OK. 

13.  On 12 September 1971, he departed his unit in an AWOL status.  He was arrested by civil authorities on 14 September 1971 and confined in Lawton City Jail for being AWOL.  While in jail, he was charged with writing bogus checks and he was sentenced to 2 years imprisonment at the State Penitentiary, McAlester, OK.  He was released from prison after serving 90 days.

14.  On 31 January 1972, the applicant's immediate commander initiated a Bar to Reenlistment Certificate against him.  He stated: 

	a.  Since the applicant's assignment to this unit, he has been placed in the    S-4 section.  He was placed in several positions within the section but failed to demonstrate any desirable characteristics.  He was unable to arrive at work on time and he could not get along with any person working with him. 

	b.  He was AWOL and had been arrested by civil authorities for writing bad checks.  He was sentenced to 2 years of prison time but released some 90 days into his sentence.  He was charged with AWOL and  writing bogus checks to the United States Treasury Department.  He had been repeatedly counseled on his poor performance, poor attitude, and inability to handle personal affairs but he would not respond positively to counseling.

15.  The applicant was provided with a copy of this bar but elected not to submit a statement on his own behalf.  His immediate, intermediate, and senior commanders all recommended approval of the bar.  The bar was ultimately approved by the approval authority.

16.  On 22 February 1972, he departed his unit in an AWOL status.  He was immediately dropped from the Army rolls as a deserter.  He surrendered to Federal authorities in Hamilton, OH, and returned to military control on 3 October 1972. 

17.  On 10 October 1972, his command preferred additional court-martial charges against him for two specifications of AWOL from 12 to 14 September 1971 and 22 February to 3 October 1972.

18.  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 Enlisted Personnel).  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, that 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 that he could expect to encounter substantial prejudice in civilian life
* he elected to submit a statement in his own behalf

19.  In his statement, the applicant stated: 

* he joined the Army because he wanted to stay in one place; something he could not do in the Navy
* his attitude about the Army was good and he even reenlisted; but, his attitude changed when he was denied leave to be with his wife and baby
* he went AWOL because he felt the Army was using him as a machine and felt he was brainwashed into believing the Army cared about him
* he felt his attitude towards the Army was bad and that he should be given a discharge because he was not able to reenlist; there was no reason to stay in
* if his discharge is denied, he would continue to go AWOL until he is given a discharge and that this discharge should be a good one in light of his prior two honorable discharges 

20.  On 16 October 1972, his immediate and intermediate commanders recommended approval with the issuance of an Undesirable Discharge Certificate.  Both commanders believed the applicant is triable by court-martial under circumstances that could lead to a bad conduct or a dishonorable discharge and that based on the applicant's previous record, punishment was expected to have minimal rehabilitative effect.  The total lack of any benefit to the Army or society accomplished by punishment would seem to justify granting the applicant a discharge.  

21.  On 26 October 1972, 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 2 November 1972, the applicant was accordingly discharged.

22.  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 3 years, 11 months, and 24 days of active service during this period and he had 347 days of lost time.  He was awarded or authorized the Army Commendation Medal, a letter of appreciation, and credited with three campaigns. 

23.  There is no indication in the applicant's records that he was captured by the enemy or reported in a POW status.

24.  There is no evidence the applicant petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations. 

25.  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.  However, there is no evidence in his records and he provides none to support his contention that he was captured and spent about 5 years in various North Vietnamese POW camps, including South Vietnam, North Vietnam, Laos, and Cambodia, or that President Ford negotiated his release (with thousands of other American POWs) in 1975. 

3.  Likewise, there is no evidence in his records and he provides none to show that his alleged time as a POW and the injuries sustained through torture during his imprisonment prevented him from completing his 6 year commitment.  The evidence of record clearly shows his 6-year enlistment commitment was interrupted by his choice to go AWOL and his choice to request discharge in lieu of trial by court-martial.  

4.  The difficulties he encountered at his unit at the time and his attempt to take leave to look for his wife 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.

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, included multiple instances of AWOL, a special court-martial conviction, an arrest by civil authorities, a bar to reenlistment, a conviction and imprisonment by civil authorities, and court-martial charges for AWOL, render 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)                                         AR20140016115



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ABCMR Record of Proceedings (cont)                                         AR20140016115



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