IN THE CASE OF:	

		BOARD DATE:	  April 14, 2009

		DOCKET NUMBER:  AR20080018008 


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, an upgrade of his undesirable discharge to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he began his military service as the model Soldier.  The applicant continues that this was evident in the facts that he was promoted three times, competed in a Soldier of the Month competition, and was nominated to serve as president of an organization whose focus was to improve and maintain the morale of Soldiers serving in the Republic of Vietnam.  The applicant also states that he was hospitalized and treated for pneumonia and a mild case of frostbite while attending advanced individual training (AIT) at Fort Gordon, Georgia.  While serving in the Republic of Vietnam, the applicant injured himself while filling sandbags and was subsequently medically evacuated to Saigon where he underwent surgery to repair a bilateral inguinal hernia.

3.  The applicant states, in effect, that he began using drugs during his tour of duty in the Republic of Vietnam.  The applicant now believes his drug use may have led to the decisions he made which resulted in his discharge.  The applicant states that he has had two reoccurrences of his hernia condition and some psychological problems since he was discharged.  The applicant further states that in an attempt to bring correction to his life, he has been enrolled in a drug rehabilitation program since 18 September 2008.



4.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States); a four-page self-authored statement; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a DA Form 1341-1 (Allotment Document); a VA [Veterans Administration] Form 10-2502 (Appointment Card); a Department of Health Services, County of Los Angeles Clinic Appointment sheet; two VA Forms 10-2577d (Prescription Form); nine Postal Money Order receipts; and a letter from a counselor from Canon Human Services Center, Inc., Brown Scapular Program (substance abuse treatment program) as documentary evidence 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's record shows that on 31 July 1970, he enlisted in the Regular Army, with the consent of his mother, at the age of 17 years, 10 months, and
17 days.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded military occupational specialty (MOS) 72C (Switchboard Operator).  The applicant served in the Republic of Vietnam from 11 January 1971 through 14 July 1971, for a period of 6 months and 4 days.  The highest rank/grade the applicant attained while serving on active duty was specialist four (SP4)/E-4.  However, at the time of his separation he held the rank of private (PV1)/E-1.

3.  The complete facts and circumstances of the applicant's separation are not available for review in the applicant's record.  However, there is sufficient documentation to render a fair and impartial decision in this case.

4.  Headquarters, U.S. Army Training Center, Infantry, Fort Ord, California, Special Orders Number 237, dated 25 August 1971, show that having returned to military control from an absent without leave (AWOL) status and having been 
dropped from the roll of his organization, the applicant was assigned to the U.S.  Army Personnel Control Facility, United States Army Training Center, Infantry, Fort Ord, effective 23 August 1971.

5.  A DA Form 2627-1 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ)), dated 25 August 1971, shows the applicant accepted nonjudicial punishment for being AWOL from his unit from 14 July 1971 until
23 August 1971.  The punishment imposed consisted of forfeiture of $40.00 per month for two months.

6.  Headquarters, U.S. Army Training Center, Infantry, Fort Ord, Special Orders Number 340, dated 6 December 1971, show that having returned to military control from an AWOL status and having been dropped from the roll of his organization, the applicant was assigned to the U.S. Army Personnel Control Facility, U.S. Army Training Center, Infantry, Fort Ord, effective 30 November 1971.

7.  Headquarters, U.S. Army Training Center, Infantry, Fort Ord, Special Orders Number 362, dated 28 December 1971, reassigned the applicant, in the rank/grade of PV1/E-1, to the U.S. Army Transfer Point, Fort Ord, for separation processing.  These orders directed that he be discharged under the provisions of chapter 10 (discharge for the good of the service) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with a characterization of service of under other than honorable conditions and that he be issued a DD Form 258A (Undesirable Discharge Certificate), effective 29 December 1971.

8.  The applicant's DD Form 214 shows that he was discharged accordingly under the provisions of chapter 10 of Army Regulation 635-200.  The DD Form 214 also shows the applicant had a total of 123 days of time lost due to AWOL during the periods from 15 July 1971 - 22 August 1971 and from 7 September 1971 - 29 November 1971.

9.  The applicant provides a Postal Money Order receipt, dated in March 1971, showing that he purchased a money order in the amount of $100.00 payable to his mother.  The applicant also provides a Postal Money Order receipt, dated 6 May 1971, showing that he purchased a money order payable to the United Service Organization for an undeterminable (illegible) amount.  He further provides seven Postal Money Order receipts that do not show who either the purchaser or the payees were.


10.  The applicant provides a DA Form 1341-1, dated 27 August 1971, which shows he initiated a support allotment in the amount of $40.00 from his pay to be sent to his mother on a monthly basis commencing in September 1971.

11.  The applicant provides a VA Form 10-2502 which shows he was scheduled for general surgery on 19 April 1976 and that he was admitted to "E-3" on
30 April 1976.  Both of these actions took place at the VA Hospital located in Long Beach, California.

12.  The applicant provides a VA Form 10-2577d, dated 25 May 1976, which shows he was treated for his hernia on 5 May 1976 and that he would be able to return to work on 7 June 1976.

13.  The applicant also provides a VA Form 10-2577d, dated 22 June 1976, which shows he was seen by a physician that day and released to [perform] any kind of work.

14.  The applicant provides an appointment form from Harbor General Hospital located in Torrance, California.  This form shows he was scheduled for an appointment in Mental Health Room 2 of the Crisis Clinic on 18 August 1976.

15.  The applicant provides a letter from a Counselor at the Cannon Human Service Centers, Incorporated, Brown Scapular Program, Los Angeles, California, dated 30 November 2008, and addressed to the Department of Probation.  The purpose of the letter was to serve as verification that the applicant was enrolled in the program for the treatment of substance abuse.  The Counselor also stated that the applicant was accepted in the residential component of the program on 19 September 2008, and at the time, his 
treatment was ongoing.

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

17.  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, an undesirable discharge was considered appropriate. 

18.  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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The record shows that the applicant was AWOL and dropped from the rolls of his organization prior to returning to military control on two occasions.  On the first occasion, he was absent for a period of 39 days.  On the second occasion, he was absent for a period of 84 days prior to returning to military control.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, the applicant's discharge reflects his overall record of military service.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions discharge.

5.  The applicant's inclusion of documents pertaining to his medical condition with his application implies that his request for upgrading his discharge is at least partially based on enhancing his entitlement to veterans benefits.  The ABCMR does not amend and/or correct military records solely for the purpose of making the applicant eligible for employment, employment benefits, or veteran's benefits.

6.  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 did not submit any evidence that would satisfy this requirement and there is no basis for granting his 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)                                         AR20080018008



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ABCMR Record of Proceedings (cont)                                         AR20080018008



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