IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008365 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 IN THE CASE OF: BOARD DATE: 7 April 2016 DOCKET NUMBER: AR20150008365 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: 7 April 2016 DOCKET NUMBER: AR20150008365 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. He states that he was young but served his country honorably during a very bad war. After serving 18 months in Vietnam he was reassigned to Fort Hood, TX, to complete 3 additional months on active duty. He was directed to go to the corner and wait for a bus and after waiting for some time a bus arrived going to town. He got on it, not knowing it was the wrong bus. For the last 45 years he has paid dearly for taking the wrong bus. 3. He provides his DD Form 214 (Armed Forces of the United States Record 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 insufficient bases to waive the statute of limitations for timely filing. 2. On 14 September 1967, at 21 years of age, he enlisted in the Regular Army. The highest rank/grade he attained was specialist four (SPC)/E-4. 3. His DA Form 20 (Enlisted Qualification Record) shows: a. he served in Vietnam from 31 January 1969 to 30 July 1970 as a combat engineer assigned to Company B, 35th Engineer Battalion (Combat) and Company B, 4th Engineer Battalion; and b. he accumulated lost time due to being absent without leave (AWOL)/Dropped from the Rolls (DFR) during the following periods: * 16 September to 14 October 1967 (29 Days AWOL) * 15 to 29 October 1967 (15 Days AWOL) * 22 November to 16 December 1967 (25 Days AWOL) * 13 July 1968 to 1 November 1968 (114 Days AWOL) * 4 to 26 November 1968 (23 Days Confinement) * 11 September to 10 October 1970 (30 Days AWOL) * 11 October 1970 to 31 October 1971 (386 Days AWOL) * 1 to 11 November 1971 (11 Days Confinement) 4. His DA Form 20B (Insert Sheet to DA Form 20 Record of Court-Martial Conviction) shows he was convicted by a special court-martial for being AWOL from 13 July to 1 November 1968. 5. A DD Form 458 (Charge Sheet), dated 18 November 1971, shows he was charged with being AWOL from 11 September 1970 to 1 November 1971. 6. On 19 November 1971, he consulted with counsel and he voluntarily requested 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. He was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. He indicated he had not been subjected to coercion whatsoever by any person and made his request of his own free will. He elected to submit a statement on his own behalf. 7. In his statement the applicant contended that he had gone AWOL in the past because he was having trouble with his spouse. He spent 18 months in Vietnam and he lost his family during this period. He remarried and his wife was expecting their first baby. He admitted to almost having a nervous breakdown in the last two months and his wife did not like what the Army had done to him. The Army was standing in the way of him keeping his family. 8. In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He also indicated he understood he could face substantial prejudice in civilian life if he were issued an Undesirable Discharge Certificate. 9. On 6 December 1971, the separation authority approved his request for discharge and directed that he be furnished an Undesirable Discharge Certificate. 10. On 14 December 1971, he was discharged accordingly. He completed a total of 2 years, 5 months, and 27 days of total active service and had 633 days of time lost. 11. On 29 May 1979, the Army Discharge Review Board (ADRB) determined that he was properly discharged and denied his request for an upgrade of his characterization of service. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 provides that the applicant must have indicated that he understood that by requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge. He must have acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. b. 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. 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 requests an upgrade of his undesirable discharge. 2. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. The applicant had extensive periods of AWOL prior to and after his tour of duty in Vietnam. Further, he was convicted by a special court-martial for being AWOL. These periods of AWOL are offenses for which he could have been tried by court-martial and sentenced to a punitive discharge under the Uniform Code of Military Justice. 3. The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case. There is no documentary evidence of mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service to honorable or under honorable conditions. //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) AR20150008365 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2