DOCKET NUMBER:  AR20090002593 


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

2.  The applicant states, in effect, he served a tour of duty in Vietnam and was reassigned to Fort Hood, Texas, where he was told he would be discharged from the U.S. Army.  The applicant adds that he agreed to be let out of the Army.

	a.  The applicant states he was not told what to expect when he entered the U.S. Army.  He adds that he dropped out of school, was in a war, and, as a result, he is now very sick and he cannot get any assistance for his medical condition.

	b.  The applicant states he was young when he entered the Army and it taught him a lot of things that he did not understand until he got older.  He adds that the Army taught him to complete the things that he starts and he has since earned his Graduate Equivalency Diploma.  The applicant concludes by stating he was the manager of one of the largest grocery chains in Dallas, Texas; ran his uncle's restaurant for eight years; and offers his thanks to the U.S. Army for showing him how to be a leader.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 16 March 2009.



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 enlisted in the Regular Army (RA) and entered active duty on 21 October 1969 for a period of 3 years.  Records show his date of birth is 12 August 1951.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  He was honorably discharged on 28 June 1970 for the purpose of immediate reenlistment.  At the time he had completed 8 months and 8 days of net active service this period.

4.  He reenlisted in the RA for a period of 3 years on 29 June 1970.  He served in the U.S. Army Europe in Germany from 2 April 1970 to 11 August 1970 and in the Republic of Vietnam (RVN) from 18 September 1970 to 17 September 1971.

5.  He received punishment under Article 15, Uniform Code of Military Justice (UCMJ), on five occasions and a summary court-martial for offenses of absence from his place of duty and misbehavior as a sentinel.

6.  A DD Form 458 (Charge Sheet), dated 19 June 1972, shows the Commander, U.S. Army Personnel Control Facility, Fort Hood, Texas, preferred charges against the applicant for absence without leave (AWOL) from 26 January 1972 to 31 January 1972 and from 1 February 1972 to 13 June 1972.

7.  On 20 June 1972, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant’s request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge and that the applicant elected to submit a statement in his own behalf.

8.  The applicant submitted an undated statement that accompanied his request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial.  This document shows the applicant stated he understood the consequences if his application for discharge is approved and, in pertinent part, wrote, "[f]ully realizing these consequences, I nonetheless wish to make this application for a discharge for the good of the service."  The immediate and intermediate commanders recommended approval.

9.  On 27 June 1972, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The commander also directed the applicant be reduced to the grade of private (E-1) and furnished an Undesirable Discharge Certificate.

10.  On 29 June 1972,  the applicant was discharged and his service characterized as under conditions other than honorable in accordance with the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He had completed 1 year, 7 months, and 5 days of net active service this period; 8 months and 8 days of other service; and 2 years, 3 months, and 13 days of total service.  He also had 147 days of lost time.

11.  A DD Form 293, dated 13 January 1982, shows the applicant requested upgrade of his undesirable discharge to an honorable or general discharge.  On 21 July 1982, the Army Discharge Review Board, after careful consideration of the applicant’s military records and all other available evidence, determined the applicant’s discharge was proper and equitable.

12.  Army Regulation 635-200, in effect at the time, set 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.

13.  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.

14.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded because he was young when he entered the Army and did not fully understand many things, he served a tour of duty in Vietnam, he has been a good citizen since he was discharged, and he would like to obtain assistance for his medical condition.

2.  The evidence of record shows the applicant was 18 years of age when he enlisted in the RA and entered active duty and he was 20 years of age at the time of his acts of misconduct and offenses that led to his administrative discharge.  Therefore, it is reasonable to conclude that the applicant had demonstrated the capacity for honorable service by his completion of training and approximately 2 years and 3 months of satisfactory service before the misconduct that led to his request for discharge.

3.  The evidence of record confirms that the applicant’s request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  In addition, the evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Therefore, considering all the facts of the case, the type of discharge and character of service directed were appropriate.

4.  The applicant's contentions regarding his post-service conduct and personal responsibility were carefully considered.  However, his good post-service conduct and personal responsibility are insufficient to merit upgrade of his discharge.

5.  As a matter of information, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for 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 has failed to submit evidence that would satisfy this requirement.

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)                                         AR20090002593



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ABCMR Record of Proceedings (cont)                                         AR20090002593



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