IN THE CASE OF:	  

		BOARD DATE:	        7 August 2008

		DOCKET NUMBER:  AR20080007879 


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 honorable or general under honorable conditions.  

2.  The applicant states that his character of discharge should be upgraded to honorable or at least general under honorable conditions because he served his country and served in Vietnam.  He states that he was exposed to Agent Orange which has now caused him to have diabetes (Type II), congestive heart failure, chronic kidney disease, hypertension, and asthma.  He feels that his discharge should be changed to allow him to receive healthcare benefits.  He has learned that herbicides will eventually destroy his body and possibly take his life.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and several medical documents.

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 26 February 1969.  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 13A (field artillery).  His highest grade held was private first class, E-3.  

3.  On 9 April 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent from his unit on 6 April 1969 and for disobeying a lawful order.  His punishment consisted of a forfeiture of $23.00 pay for one month, restriction for 14 days, and extra duty for 14 days.  

4.  On 9 June 1969, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.  His punishment consisted of a reduction to private, E-1, a forfeiture of $23.00 pay, extra duty for 14 days, and restriction for 14 days.  

5.  He was assigned to Vietnam on 18 September 1969.   

6.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) lists a period of lost time from 20 November 1969 to 13 December 1969.

7.  On 23 March 1970, the applicant accepted NJP under Article 15, UCMJ for being absent from his unit on 22 March 1970.  His punishment consisted of a forfeiture of $25.00 pay for one month, restriction for 14 days, and extra duty for 14 days.

8.  He departed Vietnam on 17 September 1970 and was reassigned to Germany in October 1970.

9.  On 2 March 1971, the applicant accepted NJP under Article 15, UCMJ for failing to go to his appointed place of duty.  His punishment consisted of a reduction to private, E-2 and a forfeiture of $34.00 pay for one month.  

10.  On 29 March 1971, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 14 March 1971 to 23 March 1971.  He was sentenced to a forfeiture of $45.00 pay for one month and confinement at hard labor for 30 days (suspended for 90 days).   

11.  The applicant’s DA Form 20 shows he was AWOL from 12 April 1971 to 14 April 1971 and 16 April 1971 to 4 May 1971.

12.  The applicant’s discharge packet is not available.  However, his DD Form 214 shows he was discharged on 8 November 1971 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service-in lieu of trial by court-martial with issuance of an undesirable discharge.  He completed 2 years, 6 months, and 27 days of creditable active service with 51 days of lost time.  

13.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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.  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.

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, 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of the applicant's chapter 10 discharge proceedings, 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, is presumed to have been administratively correct and in conformance with applicable regulations.  

2.  The applicant’s service records show he received four Article 15s and one summary court-martial.  His DD Form 214 shows 51 days of lost time.  As a result, his service record was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to a general or honorable discharge.  

3.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record of service.

4.  The applicant's contentions were noted.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable or general under honorable conditions.  

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)                                         AR20080007879



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ABCMR Record of Proceedings (cont)                                         AR20080007879



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