RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 November 2007
	DOCKET NUMBER:  AR20070008477 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Ms. Carmen Duncan

Member

Mr. Qawiy A. Sabree

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to at least general under honorable conditions.

2.  The applicant states he served two tours in Vietnam honorably.  He failed to report to Fort Bragg, NC after his last tour.  He regrets not reporting to duty, but serving in Vietnam changed him and he was not thinking clearly due to having post-traumatic stress disorder.  He now has diabetes with secondary conditions and prostrate cancer due to being exposed to Agent Orange and cannot receive benefits.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); a Bronze Star Medal award certificate; an Army Commendation Medal award certificate; an Airborne Course diploma; a Combat Infantryman Badge award certificate; a Certificate of Merit and Appreciation, dated 14 June 2004; two letters of support; and an Honorable Discharge Certificate, dated 16 February 1969.

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 2 January 1968.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He completed basic airborne training.  


3.  The applicant arrived in Vietnam and was assigned to the 2d Battalion, 506th Infantry on 9 August 1968.  

4.  The applicant was honorably discharged on 16 February 1969 and immediately reenlisted on 17 February 1969.  He was reassigned to Headquarters and Headquarters Company, 1st Aviation Brigade on 25 February 1969.  Upon transfer, his conduct and efficiency were rated as “excellent.”

5.  The applicant was absent without leave (AWOL) from 25 February 1969 through 7 March 1969.

6.  The applicant was transferred to the 52d Security Detachment on 17 March 1969.  Upon transfer, his conduct was rated as “unsatisfactory” and his efficiency was rated as “fair.”

7.  Headquarters, 101st Airborne Division General Orders Number 2578, dated 21 March 1969, awarded the applicant the Bronze Star Medal for meritorious service for the period 1 July 1968 to 28 February 1969.  He provided an award certificate that shows he was awarded the Bronze Star Medal for this period for meritorious achievement.  He provided an Army Commendation Medal award certificate that shows he was awarded this medal for the period 1 October 1968 to 28 February 1969 for exceptionally meritorious achievement.  Orders for the Army Commendation Medal are not available, and the period of service for this award is contained within the period of service covered by the Bronze Star Medal.

8.  On 16 June 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 3 to on or about 11 June 1969.  He was in confinement from 11 through  14 June 1969.

9.  The applicant departed Vietnam on 31 July 1969.  Upon reassignment his conduct and efficiency were rated as “good.”

10.  On 13 November 1969, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 3 to on or about 11 November 1969.

11.  On 17 March 1970, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 21 February 1970 to on or about 16 March 1970.

12.  The applicant arrived in Vietnam for his second tour and was assigned to Company C, 54th Infantry on 5 April 1970.  

13.  On 4 July 1970, the applicant accepted NJP under Article 15, UCMJ for failing to go to guard duty.

14.  On 18 August 1970, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 8 to on or about 11 August 1970 and for violating a lawful general regulation by being in an off-limits area.

15.  On 17 September 1970, the applicant was transferred to the 45th Combat Support Group.  Upon reassignment, his conduct and efficiency were rated as “unknown.”  On 6 December 1970, he was transferred to the 62d Maintenance Battalion.  Upon reassignment, his conduct and efficiency were rated as “good.”

16.  The applicant departed Vietnam on 20 February 1971.

17.  On 18 January 1972, court-martial charges were preferred against the applicant charging him with being AWOL from on or about 30 March 1971 to     on or about 22 April 1971 and from on or about 4 May 1971 to on or about        28 December 1971.

18.  On 21 January 1972, the applicant completed a mental status evaluation.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

19.  On 1 February 1972, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation     635-200, chapter 10 for the good of the service in lieu of trial by court-martial.   He was advised was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and Veterans Administration (VA) benefits.  He submitted a statement in his own behalf, wherein he stated that his wife was pregnant and he wanted to be discharged due to low finances. 

20.  On 16 February 1972, the appropriate authority approved the applicant’s request and directed he be issued an Undesirable Discharge Certificate.

21.  On 18 February 1972, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a characterization of service of UOTHC.  He had completed a total of 3 years, 5 months, and 1 day of creditable active service and had 258 days of lost time.

22.  The applicant provided a Certificate of Merit and Appreciation, dated 14 June 2004, from the Houston Veterans Affairs Medical Center, congratulating him for completing the prescribed course of radiation therapy.

23.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, 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 and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

24.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant’s Bronze Star Medal is noted (there are no orders available for the Army Commendation Medal).  However, it is also noted that his service during his two tours in Vietnam was not entirely honorable.  He received several Article 15s while in Vietnam and a number of times his conduct and efficiency were rated as less than “excellent.”

3.  The applicant provided evidence to show that he is perhaps obtaining some VA benefits.  

4.  There is insufficient evidence on which to base an upgrade of the applicant’s discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __cd____  __qas___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




__Linda D. Simmons____
          CHAIRPERSON




INDEX

CASE ID
AR20070008477
SUFFIX

RECON

DATE BOARDED
20071114
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19720218
DISCHARGE AUTHORITY
AR 635-200, ch 10
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.