IN THE CASE OF:	  

	BOARD DATE:	  8 MAY 2008

	DOCKET NUMBER:  AR20080002754 


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 that his undesirable discharge (UD) be upgraded to an honorable discharge.

2.  The applicant states that he served with honor until his Vietnam experiences started to haunt him, which resulted in his post-traumatic stress disorder (PTSD) and caused his life to unravel.

3.  The applicant provides seven (7) documents which he lists in two addenda.

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’s military records show that he enlisted in the Regular Army on 24 June 1968, was awarded the military occupational specialty of light weapons infantryman, and reenlisted while in Vietnam on 14 April 1969.  

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, on 23 October 1969 for sleeping on guard post (a bunker in Vietnam).  The applicant again accepted NJP on 1 June 1970 for being absent without leave (AWOL) from 8 to 20 May 1970.    

4.  He again reenlisted on 21 August 1970.

5.  On 5 February 1971, the applicant was convicted by a summary court-martial, contrary to his plea, for being AWOL from 9 November to 5 December 1970.

6.  On 22 May 1974, court-martial charges were preferred against the applicant for being AWOL from 4 March 1971 to 9 May 1974.

7.  On 29 May 1974, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will and acknowledged that he was guilty of the offenses with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Undesirable Discharge Certificate; that he would be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

8.  The applicant’s request was approved and, on 19 June 1974, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, for the good of the service.  He had completed 5 months and 10 days of active service during that reenlistment and he had 1,234 days of time lost.  Two hundred and ninety one days were lost subsequent to the expiration of his term of service.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statue of limitations.

10.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  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.

13.  The documents submitted by the applicant include a statement from him in an application, and appeal, for a Department of Veterans Affairs (VA) disability.  In that statement he said that he has been applying for a VA disability since 1999, but has been denied because of his record of AWOL.  The VA responded that he was barred from the payment of VA benefits because he was AWOL continuously for more than 3 years and 2 months.

DISCUSSION AND CONCLUSIONS:

1.  The applicant served just less than 3 years of creditable active duty, which included a tour in Vietnam.

2.  However, the applicant had two NJP’s, one court-martial, and a total of 1,234 days of lost time.

3.  The applicant’s repeated and serious acts of misconduct clearly outweigh his prior honorable service and warranted him being given a UD.

4.  The applicant’s eligibility for a VA disability or any other VA benefits is determined by the VA.  The ABCMR has no authority over the VA.
5.  As such, 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 that 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)                                         AR20080002754



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ABCMR Record of Proceedings (cont)                                         AR20080002754



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