IN THE CASE OF:	  

		BOARD DATE:	  23 July 2015

		DOCKET NUMBER:  AR20140020023 


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 character of service from under other than honorable conditions to under honorable conditions (general).

2.  The applicant states, in effect, the under other than honorable conditions character of service listed on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) is an error that is preventing him from being able to qualify for veterans benefits for which he is entitled.

	a.  His character of service should be upgraded to at least under honorable conditions (general) because he was never told his discharge would be anything other than honorable.

	b.  His character of service came about when he went home to Ohio on a 
3-day pass from Fort Knox, KY.  He attempted to return to his unit; but his car broke down in Ohio.  He had to wait for his mother-in-law to pick him up and take him back.  He called the Noncommissioned Officer in Charge (NCOIC) and explained he would be late getting back and he would not be there in time for reveille (0600 hours).  The NCOIC told him he would make a note of the situation.  

	c.  The applicant arrived at his unit at 0900 hours.  His company commander called him into his office and told him he was AWOL because he was late and missed reveille.  His commander also told him he was going to demote him from specialist four/pay grade (SP4)/E-4 to private (PVT)/E-1 with a 30 day restriction to the barracks and the loss of 1 months’ pay.  He tried to explain to his commander that he called and informed the NCOIC he would be late; but his commander would not accept his explanation.  

	d.  After that he went outside and got back into the car with his mother-in-law. He went back home and stayed there for awhile.  He later turned himself into the local authorities and was transported to Fort Meade, MD to stand trial before a court-martial.  He stood before the colonels (COL) at his court-martial and explained the situation.  The COLs dismissed the case.

	e.  He was returned to Fort Knox, KY.  One day Captain (CPT) RJL came into the area and asked a group of the Soldiers, "who wants to be released from the military" and several Soldiers, including the applicant, raised their hands.  CPT RJL said, "give us 30 days and you'll have your discharge."  He and the other Soldiers remained on post for the next 30 days waiting for their discharges.  After he received his discharge he got paperwork stating that he had been sent to Fort Bragg, NC.  The paperwork also stated he had received $40 in travel pay; however, he had never been to Fort Bragg, nor had he received the $40 and he mentioned this to CPT RJL.  CPT RJL replied, "don't worry about it, you got your discharge, those things don't mean anything."

3.  The applicant provides:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 12 November 2014
* Honorable Discharge Certificate, dated 4 January 1966
* DD Form 214 for the period ending 27 January 1969

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 enlisted in the Regular Army on 2 April 1964 and held military occupational specialty 63C (Track Vehicle Mechanic).  He was honorably discharged for immediate reenlistment on 4 January 1966 and subsequently reenlisted 5 January 1966.  He was assigned to Germany during his first period of service.  The highest rank/grade he attained while serving on active duty was SP4/E-4.

3.  On 13 June 1966, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for being derelict in the performance of his duties (guard duty) in that he negligently failed to walk his post in a military manner and was smoking at his post.  He was reduced to the rank/pay grade of private first class (PFC)/E-3) for this offense and placed on extra duty and restriction to the company area for 14 days.

4.  His DA Form 20 (Enlisted Qualification Record) shows he was:

* assigned to Vietnam from 10 October 1966 to 29 September 1967,
* assigned to Fort Carson, CO, from 30 November 1967 to 
10 March 1968
* assigned to Fort Knox, KY from on or about 11 March to 27 June 1968
* in a casual leave status enroute to Fort George G. Meade, MD on 
28 June 1968
* assigned to Fort George G. Meade, MD from 10 July to 9 October 1968
* in a casual status enroute to Fort Bragg, NC on 10 October 1968
* assigned to Fort Bragg, NC from on or about 29 October to 9 January 1969
* AWOL for 53 days from 18 November 1968 to 9 January 1969 
* assigned to Fort Knox, KY from on or around 10 January to 27 June 1969
* confined for 56 days from 10 January to 6 March 1969
* AWOL for 33 days from 15 March to 16 April 1969
* AWOL for 15 days from 27 April to 11 May 1969 
* In confinement for 31 days from 12 May to 11 June 1969 

5.  Summary Court-Martial Order Number 18, issued by 1st Battalion, 32nd Armor Regiment, 3rd Armored Division, Germany, on 9 July 1966, shows he was convicted, pursuant to his pleas, of being AWOL on 1 July 1966. 

6.  On 16 February 1967, while serving in the Republic of Vietnam, he accepted NJP under the provisions of Article 15 of the UCMJ, for violating a direct order given by his commanding officer to carry his weapon with him at all times, in that he allowed his weapon to become lost for approximately 15 hours.  
7.  Special Court-Martial Order Number 692, issued by Headquarters, Special Processing Battalion, Fort George G. Meade, MD, on 27 August 1968, shows he was convicted, pursuant to his pleas, of being AWOL from his unit at Fort Knox, KY from on or about 11 March to 28 June 1968.  

8.  Special Court-Martial Order Number 379, issued by U.S. Army Armor Center, Fort Knox, KY, on 7 March 1969, shows he was convicted, pursuant to his pleas, of being AWOL from his unit at Fort Bragg, from on or about 18 November 1968 to 10 January 1969.  

9.  His record contains a DA Form 458 (Charge Sheet), dated 2 June 1969, which shows he was charged with being AWOL from his unit at Fort Knox, KY from on or about 15 March to 17 April 1969 and from on or about 27 April to 
12 May 1969.

10.  On 12 June 1969, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible 
punishment authorized under the UCMJ, the possible effects of an other than honorable conditions discharge and the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

11.  In this request for discharge he acknowledged he understood that if his discharge request was approved 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  The separation authority approved his request for discharge on 12 June 1969, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate.  

13.  Accordingly, he was discharged on 27 June 1969.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, in the rank/grade of private/E-1, with an under other than honorable conditions character of service.  He completed 2 years, 7 months, and 27 days of total active service with approximately 157 days of lost time prior to his expiration term of service (ETS) and 140 days of lost time beyond his normal ETS due to being AWOL and in confinement.

14.  His record contains ABCMR proceedings, dated 13 October 1976, which show he requested correction of his records to show he was honorably discharged.  The ABCMR denied his request.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses 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 were responsible for ensuring that individuals were 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 charged the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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.

	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 contends his character of service should be upgraded to at least under honorable conditions (general) because was never informed he would receive anything other than an honorable discharge and his discharge is preventing him from qualifying for veteran’s benefits.  

2.  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.  His record contains numerous instances of being AWOL, NJP, and three courts-martial convictions.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

4.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for upgrading his character of service to an honorable or a general discharge in this case.

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)                                         AR20140020023





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ABCMR Record of Proceedings (cont)                                         AR20140020023



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