AR20150009266

IN THE CASE OF:

BOARD DATE: 8 March 2016

DOCKET NUMBER: AR20150009266

BOARD VOTE:

_________ _______ ________ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

____X____ ___X_____ ___X_____ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 8 March 2016

DOCKET NUMBER: AR20150009266

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined 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.

Enclosure1

IN THE CASE OF:

BOARD DATE: 8 March 2016

DOCKET NUMBER: AR20150009266

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 his undesirable discharge be upgraded to a general, under honorable conditions discharge.

2. The applicant states he believes his record is in error because he served over 180days and had 1year of service in combat prior to being absent without leave (AWOL).

3. The applicant provides no additional evidence.

CONSIDERATION OF EVIDENCE:

1. Title10, U.S.Code, section1552(b), provides that applications for correction of military records must be filed within 3years 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 28August 1967. In March 1968, he was assigned to the Overseas Replacement Station, Oakland, CA, en route to assignment in Vietnam.

3. On 28March 1968, he received nonjudicial punishment (NJP) under the provisions of Article15, Uniform Code of Military Justice (UCMJ), for being AWOL from his assigned unit from 24 to 27March 1968.

4. He served in Vietnam from 30March 1968 to 29March 1969. On 16April 1969, he was assigned to FortStill, OK.

5. On 8July 1969, he was honorably discharged for the purpose of immediate reenlistment. The DDForm214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service shows he completed 1year, 10months, and 11days of total active service.

6. On 9July 1969, he reenlisted in the RA for a period of 4years. On 5August 1969, he was reported as AWOL from his assigned unit and on 3September 1969 he was dropped from the rolls (DFR) of his unit as a deserter.

7. On 24October 1969, he was apprehended by civilian authorities and returned to military control. He was assigned to the U.S. Army Special Processing Detachment, FortJackson, SC.

8. On 15December 1969, he was reported as AWOL from his assigned unit and was subsequently DFR as a deserter.

9. On 17August 1970, he was apprehended by civilian authorities and returned to military control and to the U.S. Army Special Processing Detachment, Fort Jackson.

10. On 21August 1970, court-martial charges were preferred against him for two specifications of being AWOL from 5August to 24October 1969 (81days or 2months and 21days) and from 15December 1969 to 17August 1970 (246days or 8months and 6days).

11. On 21August 1970, after being advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge and the procedures and rights available to him, he declined to consult with legal counsel, and voluntarily submitted a request for discharge under the provisions of ArmyRegulation 635-200 (Personnel Separations – Enlisted Personnel), chapter10, for the good of the service – in lieu of trial by court-martial. In his request, he acknowledged that 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.

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

13. On 14September 1970, his immediate commander recommended approval of the applicants request for a discharge with the issuance of an Undesirable Discharge Certificate. He stated a review of his records in conjunction with his negative attitude toward honorable service indicated it would be in the best interests of the Army to approve the request.

14. On 18September 1970, his senior commander recommended approval of the applicant’s request for a discharge with the issuance of an Undesirable Discharge Certificate.

15. On 22September 1970, the separation authority approved his request for a discharge under the provision of Army Regulation 635-200, chapter10, for the good of the service – in lieu of trial by court-martial and directed the issuance of an Undesirable Discharge Certificate. On 25September 1970, he was discharged accordingly.

16. The DDForm214 he was issued for this period of service is not available for review with this case. However, his record contains a Certification of Military Service, dated 21April 1992, that certified he was a member of the RA from 9July 1969 to 25September 1970 and his service was terminated under other than honorable conditions.

17. On 3November 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined his discharge was both proper and equitable.

REFERENCES:

Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter10 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. The member would be advised of the procedures and rights available to him, 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.

a. Paragraph3-7a 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:

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, chapter10, 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 contends his discharge was in error because he served in Vietnam for 1year; however, he was issued an honorable discharge for the purpose of immediate reenlistment after his service in Vietnam.

4. The evidence of record confirms he reenlisted in the RA on 9July 1969 and he went AWOL on 5August 1969, just 28days after his reenlistment, and was AWOL for almost 3months before being returned to military control. In addition, he subsequently went AWOL again and was AWOL for over 8months prior to being returned to military control. At the time of his discharge on 25September 1970 he had almost 1year of lost time due to being AWOL.

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.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings @#!CASENUMBER

Enclosure 2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings AR20150009266

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2