BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160003358 BOARD VOTE: _________ _______ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ____x____ __x______ ___x_ DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160003358 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. BOARD DATE: 7 September 2017 DOCKET NUMBER: AR20160003358 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 to a general discharge. 2. The applicant states he served one full year in Vietnam from September 1968 to September 1969, with Company B, 227th Aviation, 1st Cavalry Division. He served honorably in Vietnam and was promoted from E-1 to E-5. He was absent without leave before and after serving in Vietnam and served time in an Army military stockade. 3. The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge). 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 sufficient bases to waive the statute of limitations. 2. The National Archives and Records Administration notified the Army Review Boards Agency that the applicant's military records were not available to the Board for review. The DD Form 214 submitted by the applicant contained sufficient evidence for the Board to conduct a fair and impartial review of this case. 3. The applicant's DD Form 214 shows he enlisted in the Regular Army on 7 August 1967, for 3 years. He held military occupational specialty 71H (Personnel Specialist). 4. His DD Form 214 shows he was discharged in pay grade E-1 on 23 July 1970. He was credited with completing 1 year, 8 months, and 16 days of active service and he had 458 days of lost time under the provisions of Title 10, U.S. Code, section 972. His service was characterized as under conditions other than honorable and he was issued a DD Form 258A (Undesirable Discharge Certificate). 5. His DD Form 214 lists in: * Item 11c (Reason and Authority) – Army Regulation (AR)  635-200 (Personnel Separations – Enlisted Personnel), Separation Program Number (SPN) 246 (In Lieu of Trial by Court-Martial) * Item 26a (Non-Pay Periods Time Lost), 20 to 24 August 1967, 23 November to 4 December 1967, 2 January to 4 April 1968, 24 April to 25 July 1968, and 9 November 1969 to 6 June 1970 * Item 30 (Remarks) – Service in the Republic of Vietnam from 24 September 1968 to 23 September 1969 6. There is no indication he petitioned the Army Discharge Review Board within its 15-year statute of limitation for an upgrade of his discharge. REFERENCES: 1. AR 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel. The regulation stated in: a. Chapter 10 – a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial. The regulation required that there have been no element of coercion involved in the submission of such a request and that the Soldier was provided an opportunity to consult with counsel. The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof. The regulation required that the request be forwarded through channels to the general court-martial convening authority. An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service. b. An honorable discharge was a separation with honor. The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate. c. A general discharge was a separation from the Army under honorable condition. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge. 2. AR 635-5-1 (Separation Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214. The regulation in effect at the time of the applicant’s discharge stipulated that SPN 246 was the appropriate code to assign Soldiers separated under the provisions of chapter 10 of AR 635-200, by reason of discharge for the good of the service. 3. AR 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION: 1. The applicant's available record is void of the complete facts and circumstances surrounding his discharge; however, it appears court-martial charges were preferred against him and, after consulting with counsel, he voluntarily requested discharge from the Army. 2. Discharge actions processed under the provisions of AR 635-200, chapter 10, are voluntary requests for discharge in lieu by trial by court-martial. In the absence of evidence to show otherwise, it must be presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would have jeopardized his rights. The evidence shows the separation authority determined his service did not rise to the level required for an honorable or a general discharge. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20160003358 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20160003358 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2