IN THE CASE OF:	  
		BOARD DATE:	        22 July 2008

		DOCKET NUMBER:  AR20080007803 


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 honorable. 

2.  The applicant states that he resigned from the Army after the Vietnam War because of stress.  He contends that he could not get any help or consolation for stress, that he has COPD [chronic obstructive pulmonary disease] from Agent Orange, and that he fought in a war while others ran.  

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or 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.  The applicant enlisted on 22 January 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 76Y (supply specialist).  He arrived in Vietnam on 8 July 1968.   

3.  On 7 June 1969, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay and restriction.  

4.  The applicant departed Vietnam on 7 July 1969.

5.  On 22 January 1970, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 2 January 1970 to 
19 January 1970.  His punishment consisted of a reduction to E-2, extra duty, and restriction (partially suspended).

6.  On 4 June 1970, in accordance with his pleas, the applicant was convicted by a special court-martial of being AWOL from 30 January 1970 to 1 May 1970 and failure to go at the time prescribed to his appointed place of duty.  He was sentenced to be confined at hard labor for 1 month, to perform hard labor without confinement for 1 month, to be restricted to the company area for 1 month, to be reduced to E-1, and to forfeit $25 pay per month for 2 months.  On 21 September 1970, the convening authority approved only so much of the sentence as provided for hard labor without confinement for 1 month, restriction for 1 month to run concurrently with the hard labor without confinement, reduction to E-1, and forfeiture of $25 pay per month for 2 months.  

7.  The applicant went AWOL on 19 October 1970 and returned to military control on 22 January 1971.  Charges were preferred against the applicant for the AWOL period.  

8.  On 2 February 1971, the applicant underwent a separation physical examination and was found qualified for separation with a physical profile of 111111.  He reported that he was in “Good” health on his Standard Form 89 (Report of Medical History), dated 2 February 1971.  

9.  On 8 February 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by 
the Veterans Administration (now known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.  

10.  On 3 March 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

11.  Accordingly, the applicant was discharged with an undesirable discharge on 
17 March 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years, 3 months, and 21 days of creditable active service with 301 days of lost time due to being AWOL.  

12.  There is no evidence of record which shows the applicant was diagnosed with any mental or medical condition prior to his discharge. 

13.  On 10 February 1986, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.

14.  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.  At the time, an undesirable discharge was normally considered appropriate. 

15.  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.  

16.  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.

17.  Chapter 7 (Physical Profiling) of Army Regulation 40-501 (Standards of Medical Fitness) provides that the basic purpose of the physical profile serial system is to provide an index to the overall functional capacity of an individual and is used to assist the unit commander and personnel officer in their determination of what duty assignments the individual is capable of performing, and if reclassification action is warranted.  Four numerical designations (1-4) are used to reflect different levels of functional capacity in six factors (PULHES):
P-physical capacity or stamina, U-upper extremities, L-lower extremities,
H-hearing and ears, E-eyes, and S-psychiatric.  Numerical designator "1" under all factors indicates that an individual is considered to possess a high level of medical fitness and, consequently, is medically fit for any military assignment.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that he was under stress was noted.  However, evidence of record shows he underwent a separation physical examination on 
2 February 1971 and was found qualified for separation.  He reported that he was in good health at that time.  There is no medical evidence of record that shows he was diagnosed with any mental condition prior to his release from active duty.    

2.  The applicant’s record of service included two nonjudicial punishments, one special court-martial conviction, and 301 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.
   
4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xx____  __xx____  ____xx__  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.



      ________xxxx___________
      		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)                                         AR20080007803



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ABCMR Record of Proceedings (cont)                                         AR20080007803



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