BOARD DATE:	  25 August 2015

		DOCKET NUMBER:  AR20140021669 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he was only 16 years of age at the time he enlisted and was sent to Vietnam at the age of 17.  He goes on to state that he was court-martialed, discharged, and kicked out once he revealed the mistake that had been made. 

3.  The applicant provides a copy of his birth certificate.

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 (RA) on 10 March 1969 for a period of 3 years.  At the time of his enlistment he indicated his date of birth (DOB) was in June 1949.  He was transferred to Fort Ord, California to undergo one-station unit training as an infantry indirect fire crewman.

3.  On 19 May 1969, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 10 to 19 May 1969.  His records also show that he was AWOL from 2 to 21 September 1969; however, the record is silent as to the punishment imposed for these offenses.

4.  He completed his training and was transferred to Vietnam on 26 September 1969.  On 6 October 1969, he was assigned to Company D, 2nd Battalion, 7th Cavalry Regiment, 1st Cavalry Division.

5.  On 15 October 1969, the applicant was flagged for disobeying a lawful order to join his unit in the field.

6.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs (VA) in Little Rock, Arkansas on 19 April 1974.  However, his records do contain a duly authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 15 January 1970 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 9 months and 7 days of active service and he had 29 days of lost time due to being AWOL.  He also acknowledged that he had been informed of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  However, there is no evidence in the available records to show that he applied to the ADRB within that board’s 
15-year statute of limitations. 

7.  On 25 July 1978, the applicant again enlisted in the RA for a period of 
3 years, training as an automotive repairman and assignment to Korea.  He indicated at that time that his DOB was in June 1952.  He also indicated that he had no prior military service and only minor traffic violations.

8.  He completed basic training at Fort Dix, New Jersey and advanced individual training at Aberdeen Proving Ground, Maryland before being transferred to Korea on 9 January 1979.

9.  On 9 May 1979, the applicant’s commander notified him that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for fraudulent enlistment due to concealment of prior service and a conviction by civil authorities.

10.  On 10 May 1979, after consulting with defense counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.

11.  On 31 May 1979, the applicant’s commander recommended the applicant’s discharge under the provisions of Army Regulation 635-200, chapter 14 for fraudulent enlistment.  He cited as the basis for his recommendation that the applicant failed to reveal his previous undesirable discharge, serious civil offenses which included rape, grand larceny, burglary, and that he had been incarcerated in penal institutions.  Additionally, he failed to list all the locations in which he had resided prior to his enlistment.

12.  The appropriate authority (a brigadier general) approved the recommendation for discharge on 5 July 1979 and directed that he be discharged under other than honorable conditions.

13.  Accordingly, on 18 July 1979, he was discharged under the provisions of Army Regulation 635-200, chapter 14, due to fraudulent enlistment with an under other than honorable conditions characterization of service.  He had served 
11 months and 24 days of active service during his current enlistment.

14.  The birth certificate provided by the applicant shows he was born in June 1952.

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

	a.   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 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 charged, 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 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. 

16.  Chapter 14 establishes policy and procedures for separating personnel for misconduct.  Specific categories include minor infractions, a pattern of misconduct, involvement in frequent incidents of a discreditable nature with civil and military authorities, fraudulent entry, and commission of a serious offense, which includes drug offenses.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  
 
3.  The applicant’s contention that his discharge should be upgraded because he was 16 years of age when he enlisted and was 17 years of age when he was went to Vietnam has been noted and appears to lack merit.  While it is apparent that he enlisted when he was age 16, it is also apparent the applicant was untruthful about his age at the time of his enlistment.   

4.  Additionally, he successfully completed his training and was sent to Vietnam at the age of 17.  However, unlike many other Soldiers who enlisted at the age of 17 and successfully served in Vietnam, the applicant committed an offense that was punishable by a punitive discharge.

5.  The available evidence is not sufficient to support that his age was a mitigating factor surrounding his discharge given his subsequent conduct after his discharge.

6.  Accordingly, the applicant's overall service simply did not rise to the level of 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)                                         AR20140021669





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ABCMR Record of Proceedings (cont)                                         AR20140021669



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