IN THE CASE OF:	  

	BOARD DATE:	  29 July 2008

	DOCKET NUMBER:  AR20080007469 


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 undesirable discharge be upgraded to a general discharge.   

2.  The applicant states, in effect, that the Army Discharge Review Board (ADRB) denied him an upgrade of his discharge.  This is an injustice because he did not flee to Canada.  He reported for duty and fought for his country in the Republic of Vietnam.  On 21 February 2007, the Department of Veterans Affairs (VA) informed him that, due to the type of discharge he has, he is not entitled to benefits.  After the applicant went to the Republic of Vietnam and served a time in the field, he was told by a recruiter that he could reenlist for an additional year and not have to go back into the field.  This was not true.  When he subsequently went home on leave, he discovered that he had really extended for a year and 
9 months.  It was during this time that his father left the family and his mother had to raise four children with no money.  The applicant stayed home to help until his father returned to reconcile with his mother.  At that time, he turned himself in to military authorities at Fort Meade, Maryland.  He was told that he would have to return to the Republic of Vietnam.  He could not do that and was informed that his only other option was to request a discharge and that it would be upgraded after a year.  He never received that upgrade.  He feels that the Army should shoulder some of the blame because of the actions of one of their recruiters.  




3.  The applicant provides copies of his two Armed Forces of the United States Report of Transfer or Discharge (DD Form 214), effective 26 January 1971 and 23 February 1972; letters of support from his brother and a former comrade; letter from the VA denying him benefits; and two letters informing him of the ADRB denials to upgrade his discharge. 

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 30 April 1970, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 13 October 1970, the applicant was assigned duty as an infantryman with the 2nd Brigade, 101st Airborne Division, in the Republic of Vietnam.

4.  On 27 January 1971, the applicant reenlisted in the Regular Army for 3 years. 

5.  The applicant was absent without leave (AWOL) during the period from 
26 May to 21 December 1971, and in confinement on 22 December 1972.

6.  On 23 December 1971, the applicant was questioned regarding his period of AWOL.  He was advised of his rights which included the right to consult with a lawyer.  The applicant elected not to answer questions or to make a statement and did not want to consult with a lawyer.

7.  The statement of charges is not available for review.  



8.  On 27 January 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged, he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

10.  On 8 February 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 23 February 1972, the applicant was discharged accordingly.  He had completed approximately 1 year, 3 months and 15 days of creditable active military service and had accrued 211 days of time lost due to AWOL and confinement.

11.  On 11 November 1977 and on 3 June 1982, the Army Discharge Review Board denied the applicant’s request for an upgrade of his discharge.

12.  On 10 October 2005, the applicant’s brother wrote a letter of support in which he vouches for the applicant’s accounting of events when he returned home from the Republic of Vietnam, although he cannot be certain of the exact dates.

13.  On 18 October 2005, a former comrade wrote a letter in support of the applicant, in which he relates in a similar manner the same events that the applicant stated in this application.

14.  On 21 February 2007, the VA sent the applicant a letter informing him that his discharge did not entitle him to benefits.



15.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

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 type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

5.  In view of the foregoing, 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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007469



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1