IN THE CASE OF: BOARD DATE: 15 March 2016 DOCKET NUMBER: AR20150008411 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: 15 March 2016 DOCKET NUMBER: AR20150008411 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: 15 March 2016 DOCKET NUMBER: AR20150008411 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 an honorable discharge. 2. The applicant states: a. For the past 20 years he has been in business for himself and he has been a productive member of society. b. He took the discharge in lieu of trial by court-martial because he was young and scared. c. He now believes that a court-martial would have found no reason for him to be discharged. d. He was led to believe that he could have his discharge upgraded 2 years after his discharge date. e. He was a young man who had never been away from his parents. Being a preacher's son, he had not been exposed to anything other than church. f. His records show good conduct until he entered his station overseas where he encountered overtures of homosexuality. When he rejected, he became a target for abuse which led to his incarceration which scared him to no end because he was told he was being sent to Leavenworth Federal Penitentiary if he did not take the discharge. g. Not knowing how the system worked, he took the discharge to end it all knowing he would be safe back at home. He had no one to help him stand his ground. h. He loves his country and he would have served it long and well. If he had not believed that he was overpowered, he would have fought for his right to serve his country and home honorably. i. He did not receive any benefits and he is in need of medical attention. He has no insurance, which he needs badly. Agent Orange is a major concern when it comes to his medical condition. 3. The applicant provides a self-authored statement, dated 21 April 2014. 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 9 April 1971 in pay grade E-1. He completed training as a stock control and accounting specialist. He was advanced to pay grade E-2 on 2 July 1971. 3. The applicant accepted nonjudicial punishment (NJP) on 23 August 1971 for the following: * Being derelict in the performance of his duties * Being disrespectful in language toward a senior noncommissioned officer (NCO) * Assaulting a senior NCO 4. He arrived in Vietnam on 18 October 1971. He was assigned to Company C, Troop Command, U.S. Army Depot, Long Binh. 5. On 22 November 1971, he accepted NJP for three specifications of being absent without leave (AWOL) for a total of 26 days. 6. On 29 December 1971, the applicant was notified that charges were pending against him for eight specifications of failure to be at his appointed place of duty and for one specification of wrongfully communicating a threat to a senior NCO. He acknowledged receipt of the notification. After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial. In his request for discharge, the applicant acknowledged he understood: * If his request for discharge were accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate * He would be deprived of many or all Army benefits as a result of the issuance of such a discharge * He could be ineligible for many or all benefits administered by the Veterans Administration (VA) * He could be deprived of his rights and benefits as a veteran under both Federal and State laws * He could expect to encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions 7. The appropriate authority approved the request for discharge on 16 January 1972 and directed the issuance of an undesirable discharge. 8. The applicant returned to the United States on 23 January 1972 and on 24 January 1972, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 8 months and 20 days of net active service this period. He received an Undesirable Discharge Certificate. 9. On 20 October 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge. REFERENCES: Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred. Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge. b. Paragraph 3-7a states 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 states 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's contentions have been noted. However, they are not substantiated by the evidence of record. 2. The applicant's records show he accepted NJP on at least three separate occasions for his acts of misconduct prior to arriving in Vietnam. He then had charges pending against him for numerous offenses, which if found guilty at trial by a court-martial could have resulted in confinement. 3. He submitted a request for discharge for the good of the service in lieu of trial by court-martial. In his request for discharge he acknowledged he understood that if his request was approved 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. 4. He provides no evidence to support his contention that he was told he could have his discharge upgraded 2 years after his discharge or that he was receiving homosexual overtures while he was in the Army. 5. The type of discharge he received properly reflects his overall record of service. //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) AR20150008411 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2