AR20150009545

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20150009545

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: 21 April 2016

DOCKET NUMBER: AR20150009545

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.

IN THE CASE OF:

BOARD DATE: 21 April 2016

DOCKET NUMBER: AR20150009545

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.

2. The applicant states:

a. His first request for a discharge upgrade was denied.

b. He has been married for 35years and he has raised four children and adopted one. He has never raised a hand to his wife or kids. One of his children has cerebral palsy and tubular sclerosis brain tumors and his granddaughter has spina bifida. Both conditions are a result from his exposure to AgentOrange. He enlisted in the Army and served honorably in Vietnam from October 1969 to October 1970.

c. With regard to his receipt of nonjudicial punishment (NJP) under Article15 of the Uniform Code of Military Justice (UCMJ) for assault, he never struck the sergeantfirstclass (SFC) or shoved him in a violent way. He did shove the SFC off of him because the SFC was drunk and yelling at him and demanding that he play pool with him. The next day 10Soldiers were called in for a lineup so the SFC could identify the person who jumped him. The SFC was still drunk but picked out a good friend his. He stepped forward and said it was him. He was never questioned. He was given NJP under Article15 of the UCMJ which he was never aware of during his tour in Vietnam.

d. With regard to his receipt of NJP under Article15 of the UCMJ for leaving his post in Vietnam, he performed 48hours of duty with no sign of relief from anyone. At daylight, he got up to see if anyone was alive and he ran into his sergeant who was mad because he left his station. He went back to his station and was finally relieved. Again, he was not aware that he received NJP under Article15 of the UCMJ. He just kept honorably serving his country in Vietnam.

e. After returning from Vietnam, he was charged with assault upon a Soldier by striking him on the head with a dangerous weapon (a sock with two shoe brushes in it). Another inmate was charged for this assault and the U.S.Army Criminal Investigation Division cleared him and others for that crime. Forty years later he found out that they charged him; he did not assault the Soldier in question.

f. In 1972, he did not consult with counsel. He was given a choice by a captain to “stay in the hole” or accept an undesirable discharge. He wanted to get out of the cell. He was just 19years old.

g. In 1985, he appeared in front of a review board, not a board made up of fellow veterans of foreign wars, a hearing wherein he did not have a clue what they were talking about. His lawyer just sat there and never said a word. What a shame. He was not fairly represented. He felt like he was getting off the plane in California once again with tomatoes being tossed at him and stupid people only seeing him as a “baby killer.” It was the biggest crock he had ever witnessed.

3. The applicant provides:

* self-authored statement
* four character-reference letters
* DDForm214 (Armed Forces of the UnitedStates Report of Transfer or Discharge

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 was born on 16March 1951. He enlisted in the Regular Army on 3April 1969 for a period of 3years. He arrived in Vietnam on 12October 1969.

3. Between December 1969 and August 1970, NJP was imposed against him on six occasions for:

* assaulting an SFC
* failing to go at the time prescribed to his appointed place of duty
* failing to go at the time prescribed to his appointed place of duty (two specifications)
* absenting himself without authority for 2hours
* absenting himself without authority for 10hours
* operating a 3/4-ton truck in a reckless manner and leaving his place of duty without authority

4. He acknowledged receipt of each NJP and did not demand trial by court-martial.

5. He departed Vietnam on 11October 1970.

6. Charges were preferred against him for:

a. absenting himself from his unit on 12November 1970 with intent to remain away permanently and remaining so absent in desertion until he was apprehended on 24September 1971, and

b. assaulting another Soldier by striking him on the head with a dangerous weapon (sock containing two shoe brushes).

7. On 11January 1972, after consulting with counsel, he submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation635-200 (Personnel Separations Enlisted Personnel), chapter10. He indicated he understood he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws. He also acknowledged he understood he might encounter substantial prejudice in civilian life because of an undesirable discharge. He elected not to submit a statement in his own behalf.

8. On 25February 1972, the separation authority approved the applicant’s voluntary request for discharge and directed the issuance of an undesirable discharge.

9. On 15March 1972, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation635-200, chapter10, and issued an Undesirable Discharge Certificate. He completed 2years, 1month, and 1day of total active service with 317days of lost time.

10. In 1985, the Army Discharge Review Board denied his request for a discharge upgrade.

11. He provided three character-reference letters from friends attesting:

* he served honorably in Vietnam for 1year
* he is not a vicious man
* he has experienced problems physically from AgentOrange exposure
* he is trustworthy and honest
* he deserves a discharge upgrade

12. He also provided a character-reference letter from his wife who states:

a. he did what he was told in Vietnam, he was well trained, and he followed the orders of his commanding officers;

b. surviving heroes of foreign wars, including her husband, continue to be plagued today with the effects both physically and mentally of the Vietnam war;

c. it was not until after being home several months on assigned orders that he was arrested by local police for driving under the influence that resulted in an undesirable discharge;

d. he was held without the knowledge or offer of counsel; and

e. he was offered an undesirable discharge still not other than dishonorable for his freedom from solitary confinement in the stockade for 7months.
REFERENCES:

Army Regulation635-200 sets forth the basic authority for the separation of enlisted personnel.

a. 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. 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. Chapter10 of the version currently in effect is essentially unchanged.

b. 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.

c. Paragraph3-7b 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 applicant contends he was only 19years old; however, age is not a sufficiently mitigating factor. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2. The evidence of record does not support the applicant’s contention that he served honorably in Vietnam from October 1969 to October 1970. The evidence shows he received NJP six times during his assignment in Vietnam.

3. His contention that he was not aware of his receipt of NJP in Vietnam was noted. However, the evidence shows he acknowledged receipt of each NJP.

4. The evidence of record does not support his contention that he did not consult with counsel. The evidence shows he consulted with counsel on 11January 1972.

5. Although his wife contends he was home on assigned orders, the evidence shows he deserted his unit with intent to remain away permanently until he was apprehended.

6. The character-reference letters submitted on his behalf failed to show his discharge was unjust and should be upgraded.

7. His record of service included six instances of NJP, 317days of lost time, and serious offenses, including desertion, for which court-martial charges were preferred against him. His record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

8. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation635-200, chapter10, was administratively correct and conformed with applicable regulations. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) @#!CASENUMBER

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20150009545

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2