IN THE CASE OF: BOARD DATE: 14 January 2016 DOCKET NUMBER: AR20150005248 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. 2. The applicant states, in effect, he went to Vietnam and came back to a different world. He got a Vietnam Service Medal, an Army Good Conduct Medal, and a Republic of Vietnam Campaign Medal with Device (1960). He doesn't know why the world would just change when he came back. He served his country and did his best. 3. The applicant provides no additional evidence in support of his application. 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. On 28 October 1963, he enlisted in the Regular Army for 3 years. 3. On 15 November 1963, he received nonjudicial punishment (NJP) for being absent without leave (AWOL) from 11 - 14 November 1963. 4. On 27 May 1966, he was honorably discharged and immediately reenlisted on 28 May 1966 for 3 years. 5. He was awarded the Army Good Conduct Medal for the period of service from 20 January 1964 to 19 January 1967. 6. He served in the Republic of Vietnam from 14 December 1966 - 4 January 1968. 7. On 22 June 1967, he was tried before a special court-martial. He pled guilty and was found guilty of being AWOL from 6 - 27 May 1967 from Company B, 44th Signal Battalion at Phu Loi Post, Republic of Vietnam. 8. On 8 July 1968, he received NJP for being AWOL from 30 June - 3 July 1968. 9. On 23 October 1968, he was tried before a special court-martial. He pled guilty and was found was guilty of being AWOL from 19 July - 9 October 1968. 10. On 23 August 1969, he received NJP for being AWOL from 16 - 19 August 1969. 11. On 9 March 1970, court-martial charges were preferred against the applicant for being AWOL from on or about 14 October 1969 to 25 January 1970. 12. On 11 March 1970, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations Enlisted Personnel). He acknowledged he had been afforded the opportunity to speak with counsel prior to making his request. He acknowledged he understood the elements of the offense he was charged with and he was: * making the request of his own free will * not making a statement in his own behalf * advised he might be furnished an Undesirable Discharge Certificate 13. He acknowledged he might expect to encounter substantial prejudice in civilian life if he were issued an undesirable discharge and he: * would be deprived of many or all Army benefits * might be ineligible for many or all veterans' benefits * might be deprived of his rights and benefits as a veteran under both Federal and State laws 14. His commander and intermediate commander recommended his request be approved and that he be issued an Undesirable Discharge Certificate. 15. On 16 March 1970, the appropriate authority approved the applicant's voluntary request for discharge and directed that the applicant be issued an Undesirable Discharge Certificate. 16. On 20 March 1970, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge. He completed 2 year, 11 months, and 25 days of active service on this enlistment that was characterized as under conditions other than honorable. He had approximately 302 days of time lost. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was awarded or is authorized the: * Vietnam Service Medal * Republic of Vietnam Campaign Medal with Device (1960) * Army Good Conduct Medal * Sharpshooter Marksmanship Qualification Badge with Rifle Bar 17. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 18. Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel. a. Chapter 10 stated a member who committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate. At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. b. An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. 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 have been clearly inappropriate. c. A general discharge was 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. His voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. 2. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The undesirable discharge he received accurately reflected his overall record of service. 3. The applicant went AWOL on 5 separate occasions including a 22-day period while he was in the Republic of Vietnam. 4. He received NJP on two occasions and he was convicted by two special courts-martial of being AWOL. He was pending a court-martial for being AWOL for 102 days when he requested a discharge for the good of the service. He had 302 days of time lost. 5. He did not meet the standards of acceptable conduct and performance of duty for Army personnel and his service was unsatisfactory. He does not meet the criteria for an honorable or a general discharge under honorable conditions. 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) AR20150005248 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005248 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1