IN THE CASE OF:	  

		BOARD DATE:	  9 June 2015

		DOCKET NUMBER:  AR20140016900 


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 an honorable discharge.

2.  The applicant states he received an under conditions other than honorable discharge because he left the Army without permission because his company commander (CO) would not follow his contract and transfer him to Fort Campbell or Fort Knox, KY.  The CO was going to send him to the state of Washington.  This was too far from his family.  He spent his time in Vietnam knowing what he was promised.  He has been too busy trying to make a living and it has been hard to find any help with this issue.  He is submitting statements from individuals who know him showing that he is of honorable character.  His does not think he should be punished because his CO wanted to teach him a lesson.

3.  The applicant provides five character letters.

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 the cases 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 sufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the Regular Army (RA), in pay grade E-1, on 4 August 1969, for 2 years.  His DD Form 4 (Enlistment Contract – Armed Forces of the United States) does not show any assignment preference(s).  He was awarded military occupational specialty 36C (lineman).  He served in Germany from 25 January through 13 April 1970.

3.  He was honorably discharged on 3 April 1970 for the purpose of immediate reenlistment.  He was issued a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) crediting him with completing 8 months of active service.

4.  He reenlisted in the RA on 4 April 1970 for 6 years.  Item 48 of his DD Form 4 shows he reenlisted for assignment to Vietnam.  His DA Form 3286 (Statements for Enlistment) shows he acknowledged his enlistment option for an overseas assignment to Vietnam.  The form does not indicate any other incentives or promises.

5.  He served in Vietnam from 28 May 1970 through 28 December 1971.  

6.  He was promoted to pay grade E-4 on 14 September 1970. 

7.  An undated DA Form 2496-1 (Disposition Form) shows his selected Area of Preference on return from Vietnam for the Continental United States was to the 5th Army, Indiana and/or an overseas assignment to Japan.

8.  He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 15 March 1971 – violating a lawful general regulation for disorderly conduct when apprehended by military police on 10 March 1971; his punishment included a suspended reduction to pay grade E-3, a forfeiture of $30.00 per month for one month, and 14 days of extra duty
* 2 August 1971 – failing to go to his appointed place of duty and being found drunk on sentinel duty on 16 July 1971; his punishment included a reduction to pay grade E-3 and a forfeiture of $50.00 per month for two months


9.  He was again promoted to pay grade E-4 on 18 December 1971.

10.  On 11 April 1972, he accepted NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 1 February through 4 April 1972.  His punishment included a suspended reduction to pay grade E-2 and a forfeiture of $160.00 per month for two months.

11.  He again departed AWOL on 11 June 1972 and was dropped from the rolls of his organization on 7 July 1972. 

12.  On 18 May 1973, he was apprehended by the Federal Bureau of Investigations and was returned to military control.

13.  On 31 May 1973, a DD Form 458 was completed by the Commander, Personnel Control Facility, Fort Riley, KS.  The applicant was charged with one specification of being AWOL from 11 June 1972 through 18 May 1973.  On the same day court-martial charges were preferred against him.

14.  On 31 May 1973, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation, Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial for charges being preferred against him.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

15.  On 31 May 1973, the applicant's CO recommended approval of the applicant's discharge with an undesirable discharge.  The CO stated he had interviewed the applicant on 13 May 1973 and the applicant stated he could not cope with the peace-time Army and that he didn't mind being assigned in an overseas area.  The applicant was not very dependable and it was his opinion that once the applicant was disenchanted again he would go AWOL.

16.  On 5 June 1973, the applicant's battalion commander recommended approval of the applicant's discharge with an undesirable discharge.  The commander stated the applicant was definitely of low intelligence and he couldn't really explain his motives for being AWOL.  The applicant blamed his troubles on heavy drinking.  The applicant refused further service because he had a small roofing business to maintain.  The applicant didn't care at all about the type of discharge.  The applicant's reenlistment bonus of $900.00 was spent on an automobile.

17.  On 3 July 1973, the separation authority approved the applicant’s request and directed the issuance of an Undesirable Discharge and reduction to pay grade E-1.

18.  He was discharged accordingly on 11 July 1973.  He was credited with completing 2 years, 1 month, and 29 days of active service and 429 days of time lost.  His service was characterized as under conditions other than honorable and he was issued an Undesirable Discharge Certificate.  

19.  Item 41 (Awards and Decorations) of his DA Form 20 (Enlisted Qualification Record) does not list any awards for valor during his service in Vietnam.

20.  He provided five character letter, dated between 10 and 12 September 2014, wherein his family members attested to the applicant's character as honorable and he was willing to help anyone who was in need.  The applicant had been sick for several years.  The individuals felt that the applicant would benefit from any and all the assistance he was due from the military as that would make his life much better.  

21.  There is no evidence he petitioned the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

22.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge UOTHC, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Undesirable Discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

   c.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions were carefully considered; however, the evidence of record shows he reenlisted in the RA for assignment to Vietnam.  Upon his return from Vietnam his assignment preferences, not obligations, were 5th Army, Indiana, or an overseas assignment to Japan.

2.  The applicant, upon receipt of the charges for a lengthy period of AWOL, requested to be discharged under the provisions of chapter 10 of Army Regulation 635-200 which was a voluntary request for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and the type of discharge he could receive.  He waived his rights and he was discharged accordingly.

3.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct during his period of service diminished the quality of his service below that meriting a fully honorable or a general discharge.

4.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him 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)                                         AR20140016900





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ABCMR Record of Proceedings (cont)                                         AR20140016900



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