IN THE CASE OF: BOARD DATE: 6 April 2017 DOCKET NUMBER: AR20150018156 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: 6 April 2017 DOCKET NUMBER: AR20150018156 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: 6 April 2017 DOCKET NUMBER: AR20150018156 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 discharge under other than honorable conditions to general under honorable conditions. 2. The applicant states: a. He was inducted on 14 September 1967. He served in Vietnam for 1 year. He was given 30 days of leave after returning from Vietnam. He understood he had 30 days of leave from the date he arrived home. He got married while he was on leave. During his 30-day leave, he received a letter stating he was absent without leave (AWOL). Apparently the 30-day period started the date he was placed on leave. He immediately turned himself in to Fort Hayes, Columbus, OH. He was then sent to Fort Leonard Wood, MO. He got everything straightened out there. b. He was in the process of procuring family quarters for his wife and daughter to join him, when he was notified of his daughter's death due to crib death (now known as sudden infant death syndrome) at 5 months of age. He was given leave to prepare for and attend his daughter's funeral. This was a very difficult period in his life and he was having a hard time dealing with everything. He remained absent for 60 days and was again considered AWOL. He turned himself in and was sent to Fort Leonard Wood. He received a telephone call from his wife a few weeks after returning to Fort Leonard Wood, advising him that she had been unfaithful. His company sergeant gave him a couple weeks of leave to get his personal life in order. He filed for divorce during this period. c. He was placed in the stockade at Fort George G. Meade, MD, after returning to the military. He was notified that he was being issued an undesirable discharge from the military a few weeks later. He understood he could have his discharge upgraded to general under honorable conditions after a 6-month period. This was not the case. d. He requests favorable consideration because this was a very difficult period in his life. He was having a hard time coping with what was taking place in Vietnam, combined with the emotional stress and loss in his personal life. He earned the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960) while serving in Vietnam. His total active service was 5 days short of 2 years. 3. The applicant provides transmittal correspondence from his Representative in Congress. 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 was inducted into the Army of the United States on 19 September 1967 as shown on his DD Form 47 (Record of Induction). 3. On 18 January 1968, nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) was imposed against him for absenting himself from his unit from on or about 3 January 1968 and remaining so absent until on or about 11 January 1968 (8 days). He did not demand trial by court-martial; he did not submit matters in extenuation, mitigation, or defense; and he did not appeal the punishment. 4. Headquarters, Special Troops, U.S. Army Armor Center, Fort Knox, KY, Special Court-Martial Order Number 515, dated 17 April 1968, shows he pled guilty and was found guilty of being AWOL from on or about 31 January 1968 to on or about 14 March 1968 (43 days). He was sentenced to confinement at hard labor for 4 months and forfeiture of $63.00 pay per month for 6 months. The sentence was adjudged on 10 April 1968. The sentence to confinement at hard labor for 4 months was suspended for 4 months, at which time the suspended sentence would be remitted without further action unless sooner vacated. 5. Item 31 (Foreign Service) of his DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 1 May 1968 through 29 April 1969. 6. On 16 July 1969, he was apprehended by civilian authorities for operating a motor vehicle without an operator's license, resisting arrest, and operating a motor vehicle under the influence of alcohol. He was found guilty before the municipal court on 30 July 1969 and fined $100.00 and $17.00 in court costs. He was serving his fine and cost in the county jail at the rate of $3.00 per day. 7. On 2 December 1969, nonjudicial punishment under the provisions of Article 15 of the UCMJ was imposed against him for absenting himself from his unit from on or about 17 October 1969 and remaining so absent until on or about 14 November 1969 (28 days). He did not demand trial by court-martial; he did not submit matters in extenuation, mitigation, or defense; and he did not appeal the punishment. 8. On 1 February 1970, the applicant's unit commander informed his wife by letter that he was again AWOL. The applicant was due to return from regular leave on 24 January 1970. The commander further notified his wife that he would be dropped from the unit rolls as a deserter if he did not return to military control by 23 February 1970. 9. His records contain a DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 19 February 1970, showing his records were flagged on 27 January 1970 for being AWOL on 25 January 1970. 10. His records contain a DA Form 188 (Extract Copy of Morning Report), dated 24 February 1970, showing his duty status changed from AWOL to dropped from the rolls of the organization effective 23 February 1970. 11. In a memorandum to the Commander, 401st Personnel Services Company, dated 24 February 1970, his company commander informed him that the applicant was dropped from the unit rolls as a deserter on 23 February 1970. He stated the applicant had a history of being AWOL before he was assigned to his current unit and he was AWOL twice after his assignment. There was no evidence of mental instability that would warrant his absence. 12. His records contain a DA Form 19-32 (Military Police Report), dated 24 March 1970, stating the applicant was apprehended by civil authorities on 19 March 1970 and confined in the county jail pending release to military authorities. He was returned to military control on 23 March 1970 and confined in the city work house (correctional center) pending further disposition. 13. His records contain an interview sheet, dated 31 March 1970, indicating he was apprehended by civil authorities and showing his current AWOL period as 25 January 1970 to 19 March 1970. The stated reason for being AWOL was the death of his daughter. 14. On 6 April 1970, court-martial charges were preferred against him for the AWOL period 25 January 1970 to 19 March 1970. 15. On 7 April 1970, he requested discharge for the good of the service in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10. He stated he had not been subjected to coercion with respect to his request and had been advised of the implications attached. He indicated he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; he would be deprived of many or all Army benefits; he might be ineligible for many or all benefits administered by the Veterans Administration; he might be deprived of his rights and benefits as a veteran under both Federal and State law; and he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. He further indicated he had the opportunity to consult with counsel who fully advised him in this matter. He elected not to submit statements in his own behalf. 16. His records contain a DA Form 2496 (Disposition Form), dated 16 April 1970, wherein his defense counsel requested his separation under the provisions of Army Regulation 635-200. He stated the applicant was currently charged with 53 days of AWOL. He had one previous special court-martial conviction in February 1968 for a 68-day (should read 44-day) AWOL period. He received nonjudicial punishment under Article 15 of the UCMJ twice for AWOL totaling 14 days (should read 36 days). He stated the applicant was currently out of civilian jail on bond pending disposition of burglary and grand larceny charges. He felt the applicant would not return to duty in view of his past record. 17. On 20 April 1970, the Commander, Special Processing Battalion, Fort Meade, MD, recommended the applicant's discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated the applicant was eligible for a bad conduct discharge due to his previous convictions. He recommended the applicant's elimination from the service and issuance of an Undesirable Discharge Certificate. 18. The Commander, Headquarters, Fort Meade, MD, approved the recommendation. He directed the applicant's reduction to the lowest enlisted grade, discharge without delay, and issuance of an Undesirable Discharge Certificate. 19. Headquarters, Fort Meade, MD, Special Orders Number 81, dated 24 April 1970, discharged him for the good of the service under the provisions of Army Regulation 635-200, chapter 10, effective 27 April 1970. 20. His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial on 27 April 1970 under the provisions of Army Regulation 635-200, chapter 10. a. He completed 1 year, 11 months, and 25 days of active service with 164 days of lost time prior to his expiration term of service and 65 days of lost time subsequent to his expiration term of service. b. He was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, and Republic of Vietnam Campaign Medal with Device (1960). c. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. 21. He was issued a DD Form 215 (Correction to DD Form 214) on 14 March 1978, correcting item 10c (Date Inducted) of his DD Form 214 for the period ending 27 April 1970 to show 19 September 1967. 22. On 10 October 1984, the Army Discharge Review Board determined his discharge was proper and equitable and denied his request for an upgrade of his service characterization. The board further determined his record of lost time and creditable service were in error and directed recomputation of these service categories. 23. He was issued a DD Form 215 on 15 January 1985, adjusting his service computation accordingly. REFERENCES: Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. a. Chapter 10, 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 in lieu of trial by court-martial. A discharge under other than honorable conditions was normally appropriate for a Soldier who was discharged under this chapter. However, the separation authority could direct a general discharge if such were merited by the Soldier's overall record during the current term of enlistment. b. 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 discharge under other than honorable conditions to general under honorable conditions. He understood he could have his discharge upgraded to general under honorable conditions after a 6-month period. 2. The evidence of record shows he had one special court-martial conviction in 1968 for a 43-day AWOL period. In addition, he received nonjudicial punishment under Article 15 of the UCMJ twice for AWOL totaling 36 days. 3. Court-martial charges were again preferred against him on 6 April 1970 for 44 days of AWOL from 25 January 1970 to 19 March 1970. He was currently out of civilian jail on bond pending disposition of burglary and grand larceny charges. 4. 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 regulatory guidance. He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so. 5. His record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel. 6. The Army has never had a policy whereby a discharge is upgraded due to the passage of time. //NOTHING FOLLOWS// ABCMR Record of Proceedings AR20150000953 Enclosure 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS ABCMR Record of Proceedings (cont) AR20150018156 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 1 ABCMR Record of Proceedings (cont) AR20150018156 7 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS Enclosure 2