BOARD DATE: 29 July 2014 DOCKET NUMBER: AR20130020269 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: * he was on drugs and went absent without leave (AWOL) after coming home from Vietnam * he served 6 months in the stockade at Fort Dix, NJ 3. The applicant provides no additional documentary evidence. 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 on 27 September 1966 for a period of 3 years. His DA Form 20 (Enlisted Qualification Record) shows he completed his training and was awarded military occupational specialty 51M (fire fighter). He served in Vietnam from 21 July 1967 to 19 July 1968. 3. He went AWOL on 11 September 1968 and returned to military control on 28 October 1968. He went AWOL again on 4 November 1968 and returned to military control on 11 September 1970. On 14 October 1970, charges were preferred against him for the AWOL periods. 4. After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. In his request, he indicated he understood he could be discharged under conditions other than honorable 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. 5. On 29 December 1970, the separation authority denied the applicant's request. 6. On 8 January 1971, the applicant's defense counsel requested reconsideration of the applicant's request for discharge for the good of the service. He cited: * the applicant had 24 months of good service * he served a full year in Vietnam * he had no prior convictions * he had a wife and two children who needed him at home * he had spent 4 months in pretrial confinement 7. On 8 January 1971, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate. 8. On 28 January 1971, he was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate. He completed 2 years, 4 months, and 13 days of total active service with 719 days of lost time. 9. There is no evidence of record which shows he was diagnosed with drug abuse or dependency prior to his discharge. 10. On 13 June 1980, the Army Discharge Review Board denied his request for a discharge upgrade. 11. 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, 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. 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 he was on drugs and went AWOL after coming home from Vietnam. However, there is no evidence of record and he provides no evidence which shows he was diagnosed with drug abuse or dependency prior to his discharge. 2. His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations. 3. The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case. 4. His record of service during his enlistment included 719 days of lost time. As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. 5. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or 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) AR20130020269 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20130020269 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1