IN THE CASE OF:	  

		BOARD DATE:	        17 MARCH 2009

		DOCKET NUMBER:  AR20080019099 


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 a general discharge.

2.  The applicant states that he had stomach problems when he got out of the Army.  He also states that he served in Vietnam for 7 months and 10 days and that his awards included the National Defense Service Medal, the Vietnam Service Medal with three bronze service stars, one award of the Overseas Service Bar, the Republic of Vietnam Campaign Medal with Device 1960, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  He further states that since his discharge he has had stomach, heart, and back surgery and that he needs his discharge upgraded so he can get some help.    

3.  The applicant provides a service medical record, dated 11 May 1971 and a copy of his DD Form 214 (Report of Transfer or Discharge) in support of his 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 was inducted on 29 April 1971.  He successfully completed basic combat training.       

3.  On October 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 18 September 1971 to 
28 September 1971.  His punishment consisted of a forfeiture of pay and restriction. 

4.  The applicant arrived in Vietnam on 16 November 1971.

5.  On 11 May 1972, while in Vietnam, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty (guard duty).  His punishment consisted of a fine and restriction. 

6.  On 25 May 1972, while in Vietnam, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order (curfew violation).  His punishment consisted of a forfeiture of pay and restriction. 

7.  The applicant was transferred to the United States on 25 June 1972.

8.  On 28 August 1972, nonjudicial punishment was imposed against the applicant for being AWOL from 21 August 1972 to 23 August 1972.  His punishment consisted of a forfeiture of pay. 

9.  On 16 October 1972, nonjudicial punishment was imposed against the applicant for being AWOL from 10 October 1972 to 12 October 1972.  His punishment consisted of a reduction to pay grade E-2 (suspended), restriction, and extra duty. 

10.  On 7 February 1973, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 11 December 1972 to 16 January 1973.  He was sentenced to be reduced to pay grade E-1 and restriction for 60 days.  On 9 February 1973, the convening authority approved only so much of the sentence as provided for reduction to pay grade E-1.  

11.  On 5 March 1973, the applicant went AWOL and returned to military control on 6 January 1974.  On 7 January 1974, charges were preferred against the applicant for the AWOL period.  
12. On 15 January 1974, the applicant underwent a separation physical examination and was found qualified for separation.  In item 11 (Have you ever had or have you now) on his Standard Form 93 (Report of Medical History), dated 15 January 1974, shows he reported “No” to Stomach, liver, or intestinal trouble.

13.  On  23 January 1974, 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 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 to submit a statement in his own behalf.  In summary, he stated that he liked the Army but he wanted out because he had problems at home.  He stated that he knew he would get an undesirable discharge and lose most of his benefits but he had to get out so he could solve his problems at home.  

14.  On 4 February 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

15.  Accordingly, the applicant was discharged with an undesirable discharge on 
13 March 1974 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 1 year, 10 months, and 18 days of creditable active service with 357 days of lost time due to being AWOL.  

16.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade 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.  At the time, an undesirable discharge was normally considered appropriate. 

18.  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.  

19.  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 evidence of record does not support the applicant’s contention that he had stomach problems when he got out of the Army.  On 15 January 1974, he underwent a separation physical examination and was found qualified for separation.  In addition, he reported that he did not have any stomach trouble on that date.
  
2.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

3.  Since the applicant’s record of service included five nonjudicial punishments, one special court-martial conviction, and 357 days of lost time, 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.

4.  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.  

5.  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

___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.




      _______ _   _XXX_____   ___
               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)                                         AR20080019099



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019099



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1