IN THE CASE OF:	  

		BOARD DATE:	  27 January 2015

		DOCKET NUMBER:  AR20140010367 


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 defers his request and statement to his counsel. 

2.  The applicant provides:

* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* three pages of his DA Form 20 (Enlisted Qualification Record)
* DA Form 20B (Record of Court-Martial Conviction)
* DD Form 47 (Record of Induction)
* three orders
* a letter, undated
* a memorandum, undated
* two DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* page one of DD Form 458 (Charge Sheet)

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, on behalf of the applicant, that the applicant's under other than honorably conditions discharge be upgraded to honorable. 

2.  Counsel states:

	a.  The applicant volunteered for service in the U.S. Army on 3 July 1968 and he was sent to Vietnam on “6 September” 1968 (i.e., 7 December 1968).  While in Vietnam, he served as a maintenance data specialist, heavy dump truck driver, radio telephone operator, and pioneer.  During his service, he was awarded the National Defense Service Medal, Vietnam Service Medal, and Vietnam Campaign Medal.  

	b.  During his service in Vietnam, he was a highly valued Soldier.  Because he was trusted among the local civilians, his chain of command frequently relied on him to negotiate with the local Vietnamese.  Because of his ability to negotiate with the locals, he was frequently ordered to drive to Saigon despite his not having a valid driver's license.  His chain of command was aware that he did not have the necessary license to operate Army vehicles.

	c.  On 22 January 1969, he received an Article 15 for permitting an excessive number of passengers to ride in the vehicle he was operating.  The Article 15 further alleged he was driving in an unsafe manner that caused injuries to his passengers.  He was found to be in violation of Article 92, UCMJ, for failure to obey a lawful order and he was reduced in rank/grade to private first class (PFC)/E-3.

	d.  When he was involved in the vehicular accident during a trip to Saigon, his superior officers attempted to backdate his driver's license to avoid the appearance of irregularity.  He immediately reported them and then he received an Article 15 while the officers faced no repercussions for their poor leadership.  It was at this point that he began to lose faith in his chain of command and the Army, and that mindset was established that would later lead to his choice to go absent without leave (AWOL).

	e.  On 4 February 1969, he faced a second Article 15 for failing to stand at attention before a superior officer, stating that he could "care less" when told to stand at attention, disobeying a direct order and showering at 1620 hours despite a direct order not to shower until after 1730 hours, wearing a coat without a name tape despite a direct order from his superior officer not to do so, and for being absent from his place of duty.

	f.  When he returned to the United States from Vietnam, he had approximately 5 months and 27 days (or 177 days) of service left.  He filed for a 27-day extension in order to take advantage of the Early Out program offered to Soldiers returning from Vietnam who had 150 days or less remaining on their active duty commitment.  He did so because he had been utilized as a scapegoat and because of the poor leadership demonstrated by his chain of command.  However, he was subsequently informed that his paperwork requesting the extension had been lost and that he was not eligible for the Early Out program.  Between the injustices he suffered by his superior officers and the failure of the Army to properly process his request, he became frustrated and angry.  It was this frustration that led to his subsequent attempts to leave the service prior to the end of his term and to his eventual courts-martial.

	g.  On 3 June 1970, the applicant then faced a special court-martial in which he was charged with being AWOL from his assigned unit from 19 January to 15 February 1970, failing to obey an order to get out of bed, failing to trim his moustache, and being AWOL from 27 February to 18 March 1970.  Following these incidents, he was then charged with being disrespectful to his superior commissioned officer and to his superior noncommissioned officer (NCO).  He also faced additional charges for being AWOL from 9 to 20 April 1970.  All the charges were consolidated for the purpose of trial.

	h.  When he returned from being AWOL in April 1970, he was placed in pretrial confinement.  On 13 May 1970, he faced a court-martial for these charges.  He was subsequently sentenced to more than 30 days of hard labor that was then suspended.  He was ultimately returned to his unit on 11 June 1970 and was given a 3-day pass.  He went AWOL from 16 June to 4 November 1970 and again faced a special court-martial.  He ultimately served 60 days confinement in the Post Stockade, Fort Ord, CA. 

	i.  Although the applicant eventually requested a discharge for the good of the service, he did so as a young man who was uninformed of the ramifications of his request.  He also made the request under duress from his command.  Further, the time that he had been incarcerated was arguably sufficient punishment for his misconduct.

	j.  Since his discharge, he has been a well-adjusted and valued member of his community.  He had been married for 25 years, worked as a tanker driver for almost 20 years, and volunteers to provide food to needy members of his community.  At this stage of his life, he had come to realize the value, importance, and honor of his military service.  With an under other than honorable conditions discharge, he is not entitled to a military funeral and cannot be otherwise recognized for his service in Vietnam.  Although he is clearly responsible for many choices he made that led to his discharge, his youth and the poor leadership he was under were the driving forces behind those decisions. Further, it is in the interest of justice that the honorable service he gave to his country while service in Vietnam be recognized and his discharge should be upgraded to honorable.




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 3 July 1968 when he was almost 19 years and 6 months years of age.  He held military occupational specialty 11B (Light Weapons Infantryman).  He served in Vietnam from 7 December 1968 to 6 December 1969 while assigned to the 31st Engineer Battalion.

3.  While in Vietnam, he received nonjudicial punishment (NJP) under the provisions of Article 15, UCMJ, as follows on:

* 24 January 1969, for one specification of dereliction of duty, by allowing the over-prescribed amount of passengers to ride in his vehicle and driving in an unsafe manner, thus causing injury to his passengers
* 4 February 1969, for one specification each of behaving with disrespect toward his platoon sergeant and being absent from his assigned place of duty, and two specifications of disobeying a lawful order

4.  On 13 January 1970, he was assigned to D Company, 41st Infantry, U.S. Army Combat Developments Command Experimentation Command (CDCEC), Fort Ord, CA.  He was reported as AWOL from his assigned unit from 19 January to 15 February 1970.  

5.  On 27 February 1970, he was again reported as AWOL from his assigned unit and he was dropped from the rolls (DFR) as a deserter on 1 March 1970.  On 18 March 1970, he returned to his assigned unit.  

6.  On 9 April 1970, he was reported as AWOL from his assigned unit and he was DFR as a deserter.  On 20 April 1970, he returned to his assigned unit.  

7.  On 13 May 1970, he was convicted by a special court-martial of:
* one specification each of being AWOL from 19 January - 15 February 1970, being AWOL from 27 February - 18 March 1970, being disrespectful to an officer, being disrespectful to an NCO, and being AWOL from 9 - 20 April 1970
* two specifications of failing to obey a lawful order

8.  He was sentenced to confinement for 5 months, forfeiture of $50 pay per month for 5 months, and reduction to private/E-1.  His sentence of confinement in excess of 30 days was suspended for 4 months and he was confined at the Post Stockade, Fort Ord.

9.  On 11 June 1970, he was reassigned to the Engineer Company, Support Battalion, CDCEC, Fort Ord, as a rehabilitative transfer.  On 16 June 1970, he was reported as AWOL from assigned unit and he was DFR as a deserter.

10.  On 4 November 1970, he returned to his assigned unit.  His suspended sentence of confinement for an additional 4 months was vacated and he was confined at the Post Stockade, Fort Ord.

11.  On 4 November 1970, court-martial charges were preferred against him for one specification of being AWOL from 16 June to 4 November 1970.

12.  The applicant subsequently consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or 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.  

13.  Following consultation with legal counsel, he 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.  In his request, he stated:

	a.  He was requesting a discharge in lieu of trial by court-martial under circumstances that could lead to a bad conduct or dishonorable discharge.  He had not been subjected to coercion with respect to his request for a discharge and had been advised of the implications that were attached to it (emphasis added).

	b.  He acknowledged that he understood if his request was accepted, he may be discharged under other than honorable conditions and furnished with an Undesirable Discharge Certificate.  He understood that as a result of such a discharge, he may be ineligible for many or all Amy benefits, many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both State and Federal laws.  He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  

14.  On 16 and 17 December 1970, respectively, his immediate and intermediate commanders recommended approval of his request with the issuance of an Undesirable Discharge Certificate.

15.  On 29 December 1970, his senior commander recommended approval of his request with the issuance of an Undesirable Discharge Certificate.  The commander stated the applicant had a long record of misconduct in both CDCEC and Vietnam, including four separate incidents of AWOL totaling 192 days.  Since he had been assigned to CDCEC on 13 January 1970, there were only 11 days in which he was not facing charges, AWOL, or in confinement as a result of misconduct or a court-martial.  

16.  The separation authority subsequently approved the applicant's request for a discharge and directed the issuance of an Undesirable Discharge Certificate.  On 20 January 1970, he was discharged accordingly.

17.  The DD Form 214 he was issued shows 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 (separation program number (SPN) 246), with an under other than honorable conditions characterization of service.  He completed 1 year, 11 months, and 21 days of net active service and had 331 days (or 11 months and 1 day) of lost time due to being AWOL and/or in confinement. 

18.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

19.  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 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, 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.

20.  Army Regulation 635-200, 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.

21.  Army Regulation 635-200, 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 evidence of record confirms 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.

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial. His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  The applicant's counsel contends that his discharge should be upgraded because he was young and lost faith in his chain of command at the time of his service.  Records show that he was 20 years of age at the time of his first offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service. In addition, anger at the actions of some of his leaders is not justification for repeatedly going AWOL and failing to obey lawful orders.

4.  The evidence of record confirms the applicant received NJP on two separate occasions for dereliction of duty, being disrespectful to an NCO, and for two specifications of failing to obey a lawful order.  He was subsequently convicted by a special court-martial for being AWOL on three different occasions, being disrespectful to both an officer and an NCO, and two specifications of failing to obey a lawful order.  In addition, he went AWOL again prior to his return to military control on 4 November 1970 and he had almost 1 year of lost time due to being AWOL and/or in confinement at the time of his discharge.
5.  Based on this record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, there is no basis for granting him an honorable 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)                                         AR20140010367





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ABCMR Record of Proceedings (cont)                                         AR20140010367



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