IN THE CASE OF:	  

		BOARD DATE:	        15 January 2009

		DOCKET NUMBER:  AR20080017776 


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 an upgrade of his discharge.  

2.  The applicant states that he received a commendation medal for his service in the Republic of Vietnam.  He also states that he was exposed to Agent Orange which caused his sickness, and that he was not allowed any treatment.  He further states that he was found disabled by the Social Security Administration and believes his disability was caused by this exposure to Agent Orange. 

3.  The applicant did not provide any additional documentary evidence in support of his request.

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's records show that he enlisted in the Regular Army for a period of 2 years on 12 January 1971.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 68E (Aircraft Rotary Propeller Repairman).  His records also show he extended his enlistment contract by a period of 12 months on 19 January 1971.  The highest rank/grade he attained during this period of military service was specialist four (SP4)/E-4.

3.  The applicant's records show that he served in the Republic of Vietnam from 30 December 1971 to 17 December 1972 and that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Marksman Marksmanship Qualification Badge with Rifle Badge, and two Overseas Service Bars.  His records do not reveal any significant acts of valor during his military service.  

4.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows multiple entries of absent without leave (AWOL) status and confinement as follows:

	a.  From 22 March 1971 to 4 April 1971, 14 days of AWOL; 

	b.  From 5 April 1971 to 14 April 1971, 10 days of confinement;

	c.  From 17 April 1973 to 6 May 1973, 19 days of AWOL; and

	d.  From 1 May 1973 to 6 May 1973, 6 days of AWOL.

5.  On 29 May 1973, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the periods on or about 17 April 1973 through on or about 22 April 1973 and on or about 1 May 1973 through on or about 7 May 1973.  His punishment consisted of reduction to private first class (PFC)/E-3, a forfeiture of $100.00 pay per month for 1 month, and 30 days of extra duty.

6.  On 1 August 1973, the applicant departed his Fort Hood, Texas, unit in an AWOL status and was subsequently dropped from the rolls on 30 August 1973.  He was apprehended and confined by civil authorities in McAlester, Oklahoma, on 9 October 1973.  He was released to military authorities on 10 October 1973. 

7.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 26 October 1973, that shows he was discharged for the good of the service, in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations), with a character of service of under conditions other than honorable.  This form further shows he completed 2 years, 5 months, and 5 days of creditable military service and had 130 days of lost time.

8.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his first discharge within that Board's 15-year statute of limitations. 

9.  AR 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 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.

10.  AR 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.

1.  AR 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 contends that his discharge should be upgraded.

2.  The applicant’s contention that he was exposed to Agent Orange and that he is now disabled were considered; however, there is no evidence in the available records and the applicant did not provide any substantiating evidence that shows his multiple instances of AWOL resulted from his exposure to Agent Orange.

3.  The applicant’s record is void of the facts and circumstances surrounding his discharge.  Nevertheless, it appears that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily requested discharge from the Army under such circumstances.  It is presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge appears to accurately reflect his overall record of service.

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 evidence that would satisfy that requirement.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

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.


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      _______ _   _______   ___
               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)                                         AR20080017776



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ABCMR Record of Proceedings (cont)                                         AR20080017776



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