IN THE CASE OF:	   

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140018210 


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 discharge from an under other than honorable conditions discharge to general discharge.

2.  The applicant states, effect:

	a.  While serving in Vietnam with the 101st Airborne Division his wife was raped and she tried to take her own life.  She was then sent to a state mental hospital and they had a young child at the time.  

	b.  He returned home from Vietnam on compassionate leave; however, his wife had been released from the hospital.  When he was at home his wife was taken to Fort Leonard Wood, MO, to see an Army psychiatrist.  However, he was never given the report.  

	c.  When he was at the airport in St. Louis waiting to return to Vietnam, his unit in Vietnam sent a message through the Red Cross directing him to assign himself to Fort Leonard Wood.  The message was given to him after he had given his name to airport [officials].  

	d.  He went to the post headquarters at Fort Leonard Wood to assign himself and he talked to a non-Army person who informed him that he needed paperwork.  He went back to the Red Cross and explained his problem.  The Red Cross sent a message back to his unit explaining that he needed paperwork.

	e.  He went back home and waited for the paperwork.  He thinks the paperwork was lost during the standdown in Vietnam because he never received orders.  During the same time period, his mother suffered a heart attack.  He knows it is no excuse, but he spent considerable time taking his mother to hospitals and doctors.  

	f.  Someone informed the police that he was absent without leave (AWOL) from the Army and the police came to get him.  He told them that he was waiting for orders.  He double-checked with the police and discovered there was no warrant for his arrest.  

	g.  The police called the Army to find out what was going on and that is when the Army found out that he was not at Fort Leonard Wood.  He was then taken to Fort Leonard Wood and sent to the stockade.  After a few days in the stockade, his mother died and he was sent back home for her funeral.  After the funeral, he went back to Fort Leonard Wood on his own.  He knew they could not turn him away that time.  He went to a Personnel Control Facility and during his time there he helped train National Guard troops.

	h.  He did not know he should have been given other options until he talked to a Department of Veterans Affairs (VA) counselor in 2013.  He was led to believe this was the only discharge he could get.  He never talked to a lawyer and the paperwork he signed was done assembly-line style.  This is where he feels the injustice occurred.  

	i.  He really did not have time to read anything and the men having him sign the forms did not explain anything.  He was just told that he was signing the paperwork on his own and that he was not being forced to sign.  Even a murderer is given options.  He knows military justice is different than civilian justice, but he thinks the Constitution states we should have a fair trial with a lawyer present.  In fairness, he does remember signing paperwork that avoided going to trial; but it did not give him other options.  

	j.  He served with honor in Vietnam, having earned the Combat Infantryman Badge, which is most desired by combat infantrymen.  During basic training, he scored 495 out 500 on the physical fitness training test.  In Vietnam, he served with the 1st Battalion, 506th infantry and he was training to be a one-shot, one-kill personnel when his wife was raped.  

	k.  Since his discharge from the Army, he has worked the same job for 45 years and he recently had to quit working because of health problems, which the VA stated could have been caused by his service in Vietnam.  He has never been arrested for any crime.
	l.  He is not asking for an honorable discharge because of his AWOL time, even though it was partly the Army's fault.  If possible, he would like his discharge upgraded to general, under honorable conditions.  Despite the outcome of his request, he is and will always be proud to have served his country in Vietnam the best way he could.  

3.  The applicant provides no additional evidence.  

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 was inducted into the Army of the United States on 8 April 1970.  

3.  On 15 September 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL during the period 1-14 September 1970.

4.  He arrived in Vietnam on 17 September 1970.

5.  Letter Order Number 1-162, issued by Headquarters, 101st Airborne Division (Airmobile), dated 18 January 1971, authorized his departure on compassionate leave for a period of 30 days on or about 19 January 1971.

6.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions) shows he was AWOL from 19 March to 23 November 1971.

7.  Based on his AWOL offense, court-martial charges were preferred against him on 2 December 1971.


8.  On 12 January 1972, he consulted with legal counsel and voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  

9.  In doing so, he acknowledged the charges preferred against him under UCMJ authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged:

* he had not been subjected to coercion with respect to his request for discharge
* he had been advised of the implications that were attached to it
* he could be discharged under other than honorable conditions and he could be ineligible for many or all benefits administered by the VA
* he could be deprived of many or all Army benefits and he could be ineligible for many or all benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

10.  He elected not to submit a statement in his own behalf.

11.  The separation authority approved the applicant's request for discharge on 21 January 1972 and directed his reduction to private/E-1 and the issuance of an Undesirable Discharge Certificate.  On 4 February 1972, he was discharged accordingly.  His DD Form 214 shows he had accrued 271 days of lost time and that his service was characterized as under conditions other than honorable.

12.  There is no evidence indicating he sought assistance through military channels for family issues while on compassionate leave or evidence indicating he was instructed to assign himself to Fort Leonard Wood.

13.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 14 July 1987.

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

	a.  Chapter 10, in effect at the time, provided that a member who committed an offense or offenses under the UCMJ, for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	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 request for an upgrade of his under other than honorable conditions discharge was carefully considered.  

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  After consulting with legal counsel, he voluntarily requested discharge from the Army in order to avoid trial by court-martial.  

3.  His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial, was administratively correct and in conformance with applicable laws and regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline included NJP for a 14-day AWOL period and court-martial charges for a lengthy AWOL period.  Based on the seriousness of his misconduct, and in view of the fact that he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.  

5.  He contends that he never met with counsel during his separation processing; however, the evidence of record shows he was afforded the opportunity to consult with legal counsel, who advised him of the implications that were attached to such a discharge. 



6.  His argument and post-service conduct have been noted; however, he has failed to show through the evidence submitted that his lengthy AWOL offense was justified.  Therefore, he has failed to show that his discharge processing and/or the characterization of service are in error or unjust.  As a result, there is no basis for granting his 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)                                         AR20140018210



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ABCMR Record of Proceedings (cont)                                         AR20140018210



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