IN THE CASE OF:	  

		BOARD DATE:	       23 APRIL 2009

		DOCKET NUMBER:  AR20080019932 


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 "general" discharge to "honorable." 

2.  The applicant states that he and his brother served in Vietnam around the same time.  He adds that after his return from Vietnam, he started having bad dreams about his service in Vietnam and his brother being killed, so he departed his unit in an absent without leave (AWOL) status for about a month or so.  He further adds that when he returned to his unit, he was offered a general discharge and was told it would be changed to an honorable discharge after a few years.  He concludes that he is currently in need of medical assistance due to his poor health.

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 he enlisted in the Regular Army on 5 September 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He was honorably discharged on 25 December 1969 for the purpose of immediate reenlistment.  He subsequently reenlisted for a period of 6 years on 26 December 1969.

3.  The applicant's records further show he served in the Republic of Vietnam from 2 February 1969 to 29 June 1969 and Korea from 30 June 1969 to 18 February 1970.  

4.  On 6 May 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period from on or about 3 April 1970 through on or about 28 April 1970.  His punishment consisted of a forfeiture of $145.00 pay per month for 2 months.

5.  On 16 July 1970, the applicant plead guilty at a Summary Court-Martial to three specifications of being AWOL during the periods on or about 1 June 1970 through on or about 8 June 1970, on or about 9 June 1970 through on or about 12 June 1970, and on or about 15 June 1970 through on or about 16 July 1970.  The Court sentenced him to confinement at hard labor for 14 days.  The sentence was adjudged and approved on 24 July 1970.

6.  On 7 August 1970, the applicant departed his unit in an AWOL status.  He remained in this status until he surrendered to his unit on 17 September 1970.

7.  On 7 August 1980, court-martial charges were preferred against the applicant for one specifications of being AWOL during the period on or about 7 August 1970 through on or about 17 September 1970.

8.  On 24 September 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200.

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

10.  On 25 September 1970, the applicant's battalion commander recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate. 

11.  On 7 October 1970, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced the lowest enlisted grade.  Accordingly, the applicant was discharge don 7 October 1970.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year and 9 months of creditable active military service and had 123 days of lost time.

12.  On 18 June 1976, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

13.  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, 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.

14.  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.

15.  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 contends that his discharge should be upgraded. 

2.  The applicant's service in Korea and Vietnam as well as his statement that his brother was killed were noted.  However, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence that shows his repeated instances of AWOL were caused by his service in Korea/Vietnam or the death of his brother.

3.  Contrary to the applicant's contention that he was offered a general discharge, his record shows he 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, willingly, and in writing, 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.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits 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.  

5.  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 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.




      _______ _   _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)                                         AR20080019932





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ABCMR Record of Proceedings (cont)                                         AR20080019932



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