IN THE CASE OF:	

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080007451 


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, that his under other than honorable conditions (UOTHC) discharge be upgraded. 

2.  The applicant states, in effect, that he has two different discharges.  He states in effect, that the second discharge shows that he received a UOTHC discharge with the benefits of an honorable discharge.  He continues to state, in effect, that after his service in the Republic of Vietnam (RVN) he suffered from nightmares, and cold sweats, and he was unable to think clearly.  He states that he walked away from Fort Ord, California, with no memory of doing so.  He also states, that he should have been hospitalized, diagnosed, treated, and helped.  He further states, in effect, that the Department of Veterans Affairs states that his discharge is dishonorable and therefore, denies him services.

3.  The applicant provides a copy of his separation document in support of this application.

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 30 April 1968, for a period of 
3 years.  He completed the required training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was Private First Class (E-3).

3.  The applicant was honorably discharged from active duty on 5 June 1969, for the purpose of immediate reenlistment.

4.  On 6 June 1969, the applicant reenlisted into the Regular Army.  He served a tour of duty in the Republic of Vietnam (RVN) from 17 July 1970 through 2 July 1971 and was assigned to the 2nd Battalion, 196th Infantry Brigade.

5.  On 29 April 1970, the applicant accepted nonjudicial punishment (NJP) for going AWOL on 23 January 1970 to 20 April 1970.  His imposed punishment was a reduction to the grade of private and a forfeiture of $63.00 pay for 2 months.

6.  The applicant’s record contains a DA From 2496 (Disposition Form), dated 
18 April 1972, which shows he was returned to military control after going AWOL on 2 August 1971, for a total of 260 days.  The Disposition Form also shows that he was recommended for a special court-martial and pretrial confinement.

7.  On 20 April 1972, the applicant underwent a separation physical which indicates there had been no changes in his medical condition since his last separation physical.

8.  On 4 May 1972, the separation authority directed that the applicant be separated under the provisions of paragraph 10, Army Regulation 635-200, for the good of the Service.  Special Orders Number 129, Headquarters, U.S. Army Training Center Engineer and Fort Leonard Wood, Missouri, dated 8 May 1972, shows the applicant was discharged in accordance with AR 635-200, UOTHC for the good of the service, effective 9 May 1972.

9.  The complete facts and circumstances surrounding the applicant’s discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 that contains the authority and reason for the applicant’s discharge on 9 May 1972, under the provisions of Army Regulation 635-200, Chapter 10, under other than honorable conditions.  The DD Form 214 he was issued confirms he completed a total of 3 years and 24 days of creditable active military service and 350 days lost.

10.  Item 25 (Education and Training Completed) of the applicant’s DD Form 214 dated 9 May 1972, shows that the applicant attended a class titled the “Benefits of Honorable Discharge.”

11.  Army Regulation 635-200, in pertinent part, describes the program of instruction concerning the benefits derived from receiving an honorable discharge from the Army.  This program of instruction explains that the consequences of receiving an other-than-honorable discharge can have a lasting adverse effect on the individual Soldier.  The program affects all active Army enlisted personnel, Reserve Component (ARNGUS), and USAR enlisted personnel on active duty 180 days or more.

12.  Army Regulation 635-200 (Personnel Separations) 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 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

14.  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.

15.  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 contentions were carefully considered.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.  The applicant authenticated the DD Form 214 with his signature.

2.  The evidence of record shows that the applicant attended a class about the Benefits of Honorable Discharge.  Therefore, he was aware of the stigma of receiving a less than honorable discharge. 

3.  There is no evidence that shows the applicant informed his chain of command that he had medical or psychiatric problems that were affecting his performance and conduct.  Nor did the applicant submit any evidence to show that he suffered from nightmares, cold sweats, or was unable to think clearly prior to being separated.

4.  The evidence shows the applicant received a separation physical on 
20 April 1972 and at that time, stated, by his signature and mark in the appropriate box, that there had been no changes in his medical condition since his last separation physical.

5.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

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)                                         AR20080007451



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ABCMR Record of Proceedings (cont)                                         AR20080007451



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