IN THE CASE OF:  	  

		BOARD DATE:  1 October 2015	  

		DOCKET NUMBER:  AR20150002903 


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 undesirable discharge (UD) and correction of item 22b (Total Active Service) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show he completed 2 years of service.

2.  He states that there are inconsistencies with the date of his discharge and his Veteran’s representative reiterates the same issue.  Further, he contends that he was an outstanding Soldier prior to his deployment to Vietnam and he did not receive any help for his substance abuse post-Vietnam when he returned to the United States.

3.  The applicant provides his DD Form 214 and Army Commendation Medal orders.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

His Disabled American Veterans (DAV) representative reiterates the applicant’s contentions that he completed two full years of service and that he did not have a substance abuse problem prior to his tout in Vietnam.  Further, the applicant was only doing what several Soldiers were doing to contend with the circumstances in Vietnam.  Upon his return he was not assisted with his substance abuse, and therefore was issued a punitive discharge.  An upgrade to at least general under honorable conditions is requested based on his active service prior to Vietnam.


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 record shows he enlisted in Regular Army on 28 October 1968.  He served in military occupational specialty 51B (Carpenter).

3.  His DA Form 20 (Enlisted Qualification Record) shows he was promoted to specialist four (SP4/E-4) (Temporary) on 23 August 1969 and this was the highest rank he attained while serving on active duty.

4.  Item 44 (Time Lost Under Section 972, Title 10, U.S.Code) of his DA Form 20 shows he accrued 9 days of lost time due to being absent without leave (AWOL) during 20 - 28 September 1970.

5.  On 27 August 1970, court-martial charges were preferred against him for stealing a television from another Soldier on or about 29 July 1970, valued at $40.00.

6.  He underwent a mental hygiene consultation on 7 October 1970.  The medical officer diagnosed the applicant with antisocial personality disorder.  He further noted that the applicant had longstanding behavior problems.  He was tried for armed robbery in a civil court in February 1966 and sentenced to one year probation and he was currently pending court-martial for theft.  The applicant admitted to having abused marijuana and heroin over the past several years; however, he contended that he was never addicted to any drug.  The applicant admitted to not being able to adjust to stateside service and felt he would be better off in Vietnam.  The applicant met the standards of medical fitness for retention and possessed the mental capacity to participate and cooperate fully in any administrative proceeding deemed necessary.

7.  On 15 October 1970, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial for offenses punishable by a bad conduct or dishonorable discharge; the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel); and the nature and effects of an undesirable or general discharge.

8.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.

	a.  He acknowledged that:

* he had not been subjected to coercion with respect to his request for discharge
* he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and be ineligible for many or all benefits administered by the VA
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an undesirable discharge

	b.  He waived his rights.  He elected to submit a statement in his own behalf wherein he indicated that his overall conduct and efficiency ratings had all been excellent prior to arriving at Fort Eustis, VA.  He had completed a tour in Vietnam and been awarded the Army Commendation Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal.

9.  On 26 October 1970, the separation authority approved his request for discharge and directed that he be given an Undesirable Discharge Certificate.

10.  On 28 October 1970, he was accordingly discharged from active duty.  His DD Form 214 shows:

* he completed 1 year, 11 months, and 22 days of net creditable active military service, with lost time from 20 - 28 September 1970
* he was discharged under the provisions of Army Regulation 635-200, chapter 10
* he was issued a separation program number of 246, denoting he was discharged for the good of the service
* his service was characterized as under other than honorable conditions

11.  His records document no acts of valor, significant achievement, or service warranting special recognition.
12.  The Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge on 12 August 1977.

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

	a.  Chapter 10 provides 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 and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time.

	b.  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.

	c.  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 undesirable discharge should be upgraded and his DD Form 214 should reflect 2 years of service.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial.

3.  The applicant is presumed to have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed that his discharge accurately reflects his overall record of service.
4.  Based on his record of indiscipline, specifically his criminal misconduct and brief period of AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.

5.  Regardless his contention that he completed 2 years of service, a review of his record confirmed that his enlistment date and discharge date are correctly shown on his DD Form 214 and that his time in service was correctly calculated and entered on his DD Form 214.

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)                                         AR20150002903



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ABCMR Record of Proceedings (cont)                                         AR20150002903



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