IN THE CASE OF:	  

		BOARD DATE:	  23 June 2015

		DOCKET NUMBER:  AR20140019480 


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 other than honorable conditions discharge. 

2.  The applicant states:

* he was involved in an incident related to an unlawful discharge of a weapon; however, he had a tooth pulled the day before the incident and he was on a 24-hour bed rest
* his commander ordered him to guard duty; he then discovered the bunker radio battery dead through the previous shift
* he informed the officer in charge of a need for a battery and the officer told him he would return with one 
* he was informed that anything between the bunker and the hill was not to be violated 
* without a radio to communicate, he did what he thought was the right thing; he fired warning shots without knowing if anyone else was going to fire 
* because he was placed on 24-hour shift, he should not have been in that position due to the medications and pain
* on 10 November 1970, he was charged with possession of marijuana and being asleep on guard duty 
* it is important to note he was top of his class in basic training, advanced individual training, and airborne school 
* it is also important to note that he volunteered to serve in Vietnam after being a model citizen 
* he wishes to appear before the Board

3.  The applicant provides:

* Copy of a witness statement 
* Article 15 
* Statement by accused
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 

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 Regular Army on 19 March 1969 and he trained in and held military occupational specialty 11B (Light Weapons Infantryman). 

3.  Following completion of airborne school and assignment to Fort Bragg, NC, he served in Vietnam from 26 May 1970 to 16 February 1971.  He was assigned to 1st Battalion, 503rd Infantry, 173rd Infantry Brigade. 

4.  While in Vietnam, on 2 October 1970, he was convicted by a summary court-martial of one specification of willfully disobeying a lawful order from a superior commissioned officer to go on patrol.  The court sentenced him to reduction from E-4 to E-3 and forfeiture of pay.  The convening authority approved the sentence on the same date. 

5.  Also while in Vietnam, on 10 November 1970, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana and being found asleep on radio watch.  He was reduced from E-3 to E-1 and forfeited pay. 

6.  On 23 January 1971, court-martial charges were preferred against the applicant for one specification of (he and another Soldier working jointly) failing to obey a lawful order by wrongfully discharging his weapon without authority at a landing zone and one specification of (he and another Soldier working jointly) willfully and wrongfully destroying by firing upon with the M-16, 23 cows, of a value of about 1.54 million Vietnamese Piasters, the property of a local family. 

7.  On 8 February 1971, subsequent to referral of court-martial charges, he consulted with legal counsel and was advised 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 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 voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), for the good of the service in lieu of trial by court-martial.  In his request for discharge, he stated/acknowledged that:

* prior to completing this request, he was afforded the opportunity to consult with counsel and he did so
* he was making the request of his own free will and he had not been subjected to any coercion
* he acknowledged he understood that if his request was approved he could be furnished an Undesirable Discharge Certificate
* he acknowledged that he understood if such a discharge was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration
* he acknowledged he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he had retained a copy of his chapter 10 request for discharge
* he indicated he submitted a statement in his own behalf; however, said statement is not available for review

8.  On 8 February 1971, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an Undesirable Discharge Certificate. 

9.  On 10 February 1971, consistent with the chain of command's recommendations, the separation authority approved the applicant's voluntary request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 17 February 1971. 
10.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an undesirable discharge.  He completed a total of 1 year, 10 months, and 28 days of creditable active military service of which 8 months and 20 days was foreign service.  He was awarded or authorized the: 

* National Defense Service Medal
* Combat Infantryman Badge 
* Vietnam Service Medal
* Vietnam Campaign Medal
* Parachutist Badge
* one overseas service bar

11.  On 20 April 1973, the Army Discharge Review Board denied his petition for an upgrade of his discharge after it found his discharge proper and equitable. 

12.  He provides:

	a.  A witness statement from a Soldier who witnessed him shooting his M-16 at the time and that a local woman complained that he was shooting her domestic animals. 

	b.  His own statement in relation to the incident.  He described the issue with the radio/communications at the time.  He also stated he saw no cattle but thought the enemy could be coming at them.  So, he fired his weapon.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge 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.  

14.  Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record; recommend a hearing when appropriate in the interest of justice; or deny applications when the alleged error or injustice is not adequately supported by the evidence and when a hearing is not deemed proper. The ABCMR will decide cases on the evidence of record.  It is not an investigative body.  The ABCMR may, in its discretion, hold a hearing.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the ABCMR.  Hearings may be authorized by a panel of the ABCMR or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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.

3.  The applicant was not discharged for firing his weapon.  He was discharged because he elected and requested a voluntary discharge.  He could have elected trial by a court-martial if he believed he was innocent of the charges (disobeying a lawful order and wrongfully destroying property).  


4.  Based on his record of indiscipline, which also included an Article 15 and a previous court-martial conviction, his 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 upgrade of his discharge to an honorable discharge 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)                                         AR20140019480





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ABCMR Record of Proceedings (cont)                                         AR20140019480



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