IN THE CASE OF: BOARD DATE: 30 November 2010 DOCKET NUMBER: AR20100013520 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, in effect, an upgrade of his undesirable discharge to an honorable discharge with full benefits from the Department of Veterans Affairs (VA). 2. The applicant states: * he was placed in the stockade when he was in Vietnam for the crime of attempted murder which he never committed * he was forced to leave the post * he went absent without leave (AWOL) to support his family as a result of military mistakes with his government pay voucher * prejudice played a big part when he was in Vietnam as Soldiers stood together in the field of battle, but would separate back at camp * the captain of his unit was prejudiced * he was never tried by a court-martial * he knew he had been set up because there is no way the military would have just dropped the charges that were pending against him * prior to leaving Vietnam he received all of his back pay * once he returned to the United States he was given another lump sum of money * he was later told that an error was made and that he had to pay back the money * he had family to support so he left the Army and got a job * he later turned himself in and he elected to take a chapter 10 discharge rather than be tried by a court-martial * he hoped he would receive a general discharge which would have allowed him to have full benefits * the Army could have worked something out for him as he believes the Army was also at fault * he is 62 years old with severe post-traumatic stress disorder and hepatitis C * he was a good Soldier and he put his life on the line for this country * he should receive some kind of compensation 3. The applicant provides: * letter from his wife dated, 18 September 2010 * DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 11 June 1968 * DD Form 214, dated 31 August 1967 * DD Form 214, dated 26 June 1973 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 31 August 1967. He enlisted in the Regular Army on 1 September 1967 and he completed training as a radio relay and carrier operator. 3. After completing 9 months and 14 days of total active service, the applicant reenlisted for 3 years on 12 June 1968. He arrived in Vietnam on 10 June 1971. 4. The applicant had nonjudicial punishment imposed against him on four separate occasions between 18 December 1970 and 2 March 1972 for failure to go to his appointed place of duty and for being AWOL. 5. The applicant's record contains evidence that he was held in confinement pending the outcome of an investigation for an incident that occurred. The specific evidence consists of a self-authored letter he wrote to his mother while he was in confinement telling her he had been placed in confinement as a result of being accused of attempted murder. However, the outcome of the investigation and the amount of time he was held in confinement is not shown in his record. The letter is dated 12 November 1971. 6. The applicant departed Vietnam en route to the United States on 17 April 1972. 7. Contained in the applicant's record is a DA Form 3835 (Notice of Unauthorized Absence from the U.S. Army) which shows he went AWOL on 20 November 1972 and that he remained absent in desertion until he returned to military control on 18 May 1973. 8. The facts and circumstances pertaining to the applicant's discharge are not on file. The DD Form 214 he was issued shows he was discharged on 26 June 1973 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial. He completed 4 years, 10 months, and 8 days of total active service and he had approximately 356 days of lost time. He was issued an Undesirable Discharge Certificate. 9. The applicant's DA Form 20 (Enlisted Qualification Record) shows the following dates as his periods of lost time: * 8 February 1971 to 10 February 1971 * 30 March 1971 to 27 May 1971 * 3 February 1972 to 9 February 1972 * 21 April 1972 to 27 April 1972 * 28 April 1972 to 30 May 1972 * 31 May 1972 to 31 May 1972 * 12 June 1972 to 28 August 1972 * 20 November 1972 to 6 May 1973 10. The available records do not show the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation. 11. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the version 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 at any time after court-martial charges were preferred. Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge. An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service. 12. Army Regulation 635-200, paragraph 3-7a, provides 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. 13. Army Regulation 635-200, paragraph 3-7b, provides 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. 14. Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. This regulation provides that 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 AND CONCLUSIONS: 1. The applicant's contentions have been noted and his supporting documents have been considered. Although there is evidence contained in his record showing he was confined awaiting the outcome of an investigation, there is no evidence showing there was any prejudice involved as he contends. 2. His records show he had nonjudicial punishment imposed against him on four separate occasions and he had approximately 356 days of lost time while he was in the Army. In the absence of evidence to the contrary, it appears the undesirable discharge he was issued appropriately reflects his overall record of service. 3. The fact that he is seeking benefits through the VA is not a basis for upgrading his discharge and it is not the function of this Board to grant VA benefits. He should contact the VA Regional Office in the area in which he resides to apply for VA benefits. 4. As previously stated, 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. The applicant has not shown error or injustice in the type of discharge that he received. In view of the foregoing, there is no basis for granting the applicant's request. 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 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) AR20100013520 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100013520 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1