IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080005418 


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 be upgraded to a General Discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that he was in the Republic of Vietnam (RVN) at the same time as his brother.  His brother was his hero and he wanted to be just like his brother, so he enlisted in the Army when he was 17 years old.  He was stationed near the demilitarized zone (DMZ) where there were a lot of gunfights and bombing.  When he returned from the RVN, he had a mental breakdown and was in the hospital for 3 days.  He was never able to adjust to the Army after his service in the RVN.  His brother died recently from "Agent Orange."  He contends that he is not in very good health; he has diabetes and high blood pressure.  If he can get his discharge upgraded, he can get the medical help he needs.   

3.  The applicant provides a self-authored statement.

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.  On 28 January 1971, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 52B (Power Generator Equipment Operator and Mechanic).  He attained the grade of private first class/E-3.  

3.  The applicant served in the RVN from 22 June 1971 through 23 March 1972. He performed duties as a generator operator and mechanic with C Company, 84th Engineer Battalion (Construction).

4.  The applicant's records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following 3 separate occasions for the offenses indicated:  1 March 1971, for being absent from his unit; 
25 August 1971 for disobeying a lawful order from an officer and for forging the unit commander's signature on an Equipment Utilization Record; and 15 January 1973, for being absent without leave (AWOL) from 26 March - 6 June 1973.

5.  On 10 July 1972, a summary court-martial convicted the applicant of AWOL from 24 May - 12 June 1972.  The resultant sentence included a reduction to private/E-2 and a forfeiture of $160.00. 

6.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official records.  However, his record shows that he had 
2 more lengthy periods of AWOL: 4 July - 16 September 1973 and 11 October 1973 - 6 April 1975.  His DD Form 214 shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of for the good of the service - in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He completed 2 years, 3 months, and 19 days of active duty service and had 709 days of lost time due to AWOL.

7.  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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be 
submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

8.  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.

9.  On 12 January 1982, the Army Discharge Review Board considered the applicant's petition for an upgrade of his discharge and unanimously denied his request.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official record.  The only available evidence in the applicant's official record shows he received NJP on 3 occasions, went AWOL on numerous occasions, and had 709 days of lost time due to AWOL.     

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The charges against him are unknown; however, he would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  In the absence of evidence to the contrary, regularity is presumed in the discharge process.  

3.  The applicant's contentions were carefully considered; however, they were insufficiently mitigating in view of his lengthy periods of AWOL.  There is no evidence in his official record that he had a mental breakdown when he returned from the RVN.  Given the foregoing, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel warranting a GD.  It is noted that the applicant wants an upgrade to gain access to medical benefits; however, there is no policy to upgrade discharges based solely upon the purpose of gaining access to veteran's benefits.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.


															XXX
      ______________________
               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)                                         AR20080005418



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ABCMR Record of Proceedings (cont)                                         AR20080005418



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