IN THE CASE OF: BOARD DATE: 16 June 2011 DOCKET NUMBER: AR20100029586 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 conditions other than honorable to a general discharge under honorable conditions. 2. The applicant states: * he was unable to obtain a hardship reassignment to care for his mother * his health has deteriorated due to exposure to herbicides in the Republic of Vietnam * he needs access to Department of Veterans Affairs (VA) medical benefits 3. The applicant provides two VA Forms 21-4138 (Statement in Support of Claim) and a 16-page medical history from the Good News Community Health Center. 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 10 September 1970. He completed basic combat and advanced individual training and he was awarded military occupational specialty 11C (Indirect Fire Crewman). The highest rank/grade he attained while serving on active duty was private first class/E-3. He served in Vietnam from 7 July 1971 through 1 March 1972. 3. The applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on eight occasions for the offenses indicated: * on 6 December 1970, for failing to be at his appointed place of duty * on 22 May 1971, for being absent without authority from his unit * on 3 December 1971, for failing to be at his appointed place of duty * on 18 April 1972, for failing to be at his appointed place of duty * on 24 April 1972, for being absent without authority from his unit * on 12 June 1972, for being absent without authority from his unit * on 23 June 1972, for being absent without authority from his unit * on 5 July 1972, for being absent without authority from his unit 4. The applicant has a special court-martial conviction adjudicated on 26 April 1971 and approved on 29 April 1971 for being absent without leave (AWOL) during the period 8 March through 13 April 1971. 5. The applicant's discharge packet is not available. However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 27 April 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, under conditions other than honorable. He completed 2 years, 2 months, and 2 days of creditable active military service with 167 days of lost time. 6. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 7. There is no evidence in the applicant's personnel service record which shows the applicant sought assistance from his chain of command to obtain a hardship reassignment to care for his mother. 8. The applicant provided a 16-page medical history which shows his condition, diagnosis, and treatment. 9. 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 VA 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 to an individual who was discharged for the good of the service. 10. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant's request for an upgrade of his discharge under conditions other than honorable to a general discharge under honorable conditions was carefully considered; however, there is insufficient evidence to support his request. 2. Lacking evidence to the contrary, the applicant's request for separation for the good of the service to avoid trial by court-martial under provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations. 3. There is no evidence that shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process. Absent such evidence, regularity must be presumed in this case. 4. The applicant's record includes evidence which shows he received nonjudicial punishment on numerous occasions and was AWOL for 36 days. His misconduct started before he ever arrived in Vietnam. Based on this record of indiscipline, the applicant's service clearly did not meet the standard of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to a general discharge. 5. The applicant's medical condition, diagnosis, and treatment were taken into consideration; however, his medical condition in and of itself is not sufficient to support an upgrade of his discharge. 6. The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge. Additionally, the granting of veterans' benefits is not within the purview of the ABCMR. Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA. 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) AR20100029586 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100029586 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1