IN THE CASE OF:	

		BOARD DATE:	18 August 2009    

		DOCKET NUMBER:  AR20090001425 


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 discharge characterized as under conditions other than honorable be upgraded.

2.  The applicant states that he entered the military on 18 April 1969 and reenlisted on 17 January 1971.  He offers that during his first enlistment he was honorably discharged and received numerous decorations and awards.  He states that after reenlisting he was sent to Vietnam where he went absent without leave (AWOL) because he could no longer deal with the traumatic stress of the war.  He adds that he is trying to obtain health benefits from the Veteran Administration (VA) and he was denied due to his discharge.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 he enlisted into the Regular Army on 18 April 1969.  On 17 January 1971, he was honorably discharged for immediate reenlistment.  On 18 January 1971, he reenlisted in the Regular Army.  The applicant served in Vietnam from 27 October 1969 to 17 October 1970.  He served in Korea from 22 July 1971 to 29 September 1972.

3. Item 26 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant's first DD Form 214, dated 17 January 1971, shows the following:  National Defense Service Medal (NDSM); Army Commendation Medal (ARCOM); Vietnam Service Medal (VSM); Vietnam Campaign Medal (VCM); and 2 Overseas Service Bars.

4.  On 30 August 1972, the applicant was convicted by a special court-martial of willfully and wrongfully damaging a 1971 Fiat automobile belonging to a Korean National totaling $87.50; assaulting the first sergeant by kicking him in the groin; and of being disorderly, all on 29 June 1972.  His punishment consisted of a reduction to the rank of private/E-1, confinement at hard labor for 30 days, and a forfeiture of $100.00 pay for 2 months.

5.  On 18 April 1973, nonjudicial punishment was imposed against the applicant for being AWOL from 6 March to 25 March 1973.  His punishment consisted of a forfeiture of $153.00 pay for 2 months and 30 days of extra duty for not less than 2 hours and not more than 4 hours.

6.  On 29 January 1974, charges were preferred against the applicant for being AWOL from 3 November 1973 to 18 January 1974.

7.  On 26 January 1974, the applicant underwent a physical examination and was medically cleared for separation.

8.  On 29 January 1974, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations).


9.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit any statements on his behalf.

10.  On 5 February 1974, the captain in command of the Personnel Control Facility, Fort George G. Meade, Maryland recommended approval of the applicant’s request for discharge for the good of the service with an Undesirable Discharge Certificate.

11.  On 13 February 1974, the colonel in command of Headquarter, Fort George G. Meade approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Undesirable Discharge Certificate.

12.  The applicant's DD Form 214 shows he was separated with an Undesirable Discharge Certificate on 21 February 1974.  The applicant had completed a total of 4 years, 6 months, and 25 days of active service and he had 99 days of lost time due to being AWOL.  

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 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 (emphasis added), 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.  Evidence of record shows the applicant’s request for separation under provisions of Chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  

2.  The applicant argues that he served honorably during his first enlistment and received numerous decorations and awards.  He offers that it was not until he reenlisted and was sent to Vietnam that he went AWOL due to the traumatic stress of the war.  The Board considered the applicant’s reenlistment occurred after he served in Vietnam.  Further, his AWOLs occurred after he completed a subsequent 14 month tour in Korea.  The fact that the applicant was honorably discharged during his first enlistment and was awarded the ARCOM, NDSM, VSM, and VCM is not sufficient justification to upgrade his discharge.  Further, in view of the fact that the applicant reenlisted after serving in Vietnam, discounts his argument that the traumatic stress of the war led to him leaving AWOL.

3.  The applicant also contends that his discharge should be upgraded so that he can obtain VA benefits.  Unfortunately, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.  

4.  The applicant’s record shows he received nonjudicial punishment a special court-martial conviction, and 99 days of lost time.  Based on this 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 renders his service unsatisfactory.  Therefore, he is not entitled to a discharge upgrade.





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)                                         AR20090001425



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ABCMR Record of Proceedings (cont)                                         AR20090001425



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