IN THE CASE OF:	  

		BOARD DATE:	  4 June 2009

		DOCKET NUMBER:  AR20090003134 


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 under other than honorable conditions discharge to an honorable discharge or general discharge under honorable conditions.

2.  The applicant states, in effect, from the time he was drafted in the U.S. Army until his return from a one year tour in Vietnam, he served his country with his utmost ability, honor, pride, and respect.

   a.  The applicant provides a brief description of his ancestral and family history, and his experience of growing up on the Jemez Native American reservation as a member of a peace-loving tribe.

   b.  The applicant states while he was at basic combat training in June 1969, his grandfather passed away and he was allowed to return home for the funeral.  He also states that his grandfather’s passing was a major loss to him and the entire tribal community.

   c.  The applicant states that after completion of advanced individual training, he was sent to Vietnam in October 1969 for a 1-year tour of duty.  He was assigned to the 25th Infantry Division as a Combat Engineer with duties that included Heavy Equipment Operator, Mine Sweeping, Bridge Building/Demolition, and other tasks assigned by his supervisors.

   d.  The applicant states that in June 1970, the convoy he was traveling in was ambushed by the Viet Cong and his truck was hit on the upper frame of the passenger door by a Rocket Propelled Grenade (RPG).  The applicant states that the impact of the RPG threw him from the vehicle, but the Soldier riding “shotgun” with him had his right leg severed and amputated from the knee down.

   e.  The applicant states he suffered eyesight and hearing damage from the incident, from which he has never fully recovered.  He adds that after his in-country medical treatment, he returned to his unit, was awarded the Purple Heart, completed his tour of duty in Vietnam, and returned to the United States in October 1970.
   
   f.  The applicant states that he reported for duty at Fort Campbell, Kentucky, and had about six months left on his 2-year service obligation.  In April 1971, he returned home to get married and, while at home, he was appointed to all of the clan positions that his grandfather had held.  He states that he had no choice but to accept the honors, otherwise he would be banished/exiled from the tribe.  The applicant states that he did not return to Fort Campbell, Kentucky.  He adds that he was apprehended in July 1974, incarcerated at Fort Sill, Oklahoma, and separated from the service on 6 August 1974.
   
   g.  The applicant states that his one-year tour in Vietnam had affected him both physically and mentally, and he could not think straight.  He also states that he was suffering from Post Traumatic Stress Syndrome (PTSS) and believes he was probably exposed to the Agent Orange chemical while in Vietnam.  He adds that he continued to suffer from PTSS and flashbacks for some time, but has gotten better through Native American ritualistic ways.  He also states that he has been reintegrated into his tribe’s native way of life.

	h.  The applicant concludes by stating he suffered a heart attack in April 2008, his doctor has placed him on light duty, and he has returned to work as a janitor at a local high school.  He respectfully requests upgrade of his discharge so that his claim for benefits may be approved.

3.  The applicant provides two self-authored statements, both undated; DD Form 214 (Report of Separation from Active Duty) with an effective date of 6 August 1974; DD Form 258A (Undesirable Discharge Certificate), dated 6 August 1974; two DA Forms 4980-14 (The Army Commendation Medal), dated 13 March 1970 and 18 August 1970; Army Commendation Medal Citation for the period from
1 February to 31 March 1970; State of New Mexico, County of Bernalillo, Marriage License and Certificate, recorded on 10 September 1971; two State of New Mexico, New Mexico Department of Health, Certificates of Birth, with dates of registration of 28 April 1969 and 10 December 1990; Office of the Governor - Tribal Enrollment, Certificate of Degree of Indian Blood, issued on 17 December 2008; Statement by Clara G______, undated; Pueblo of Jemez, Police Department, letter, dated 31 December 2008; and 2007 Federal Tax Return Summary, 1040A (U.S. Individual Income Tax Return - 2007), Schedule EIC (Earned Income Credit - 2007), 2007 New Mexico Tax Return Summary, 2007 PIT-1 (New Mexico Personal Income Tax), 2007 PIT-RC (New Mexico Rebate and Credit Schedule), Federal Carryover Worksheet - 2007, Tax Payments Worksheet - 2007, and Santa Barbara Bank and Trust Refund Processing Agreement (all pertaining to the applicant and his spouse).

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 military personnel records show he was inducted in the U.S. Army and entered active duty for a period of 2 years on 16 May 1969.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 12A (Pioneer) and subsequently awarded MOS 12B (Combat Engineer).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).

	a.  Item 31 (Foreign Service) shows he served in the U.S. Army Pacific (USARPAC) in the Republic of Vietnam (RVN) from 14 October 1969 through
13 October 1970.

   b.  Item 38 (Record of Assignments), in pertinent part, shows he was assigned to Company A, 65th Engineer Battalion, 25th Infantry Division (USARPAC, RVN) from 22 October 1969 through 8 October 1970.
   
   c.  Item 41 (Awards and Decorations), in pertinent part, shows the applicant was awarded the Purple Heart per Headquarters, 25th Infantry Division, (Vietnam), General Orders Number 7545, dated 8 July 1970.

	d.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal ETS [Expiration Term of Service]) shows the applicant was absent without leave (AWOL) for 11 days from 11 August through 21 August 1969, AWOL for 16 days from 28 December 1970 through 12 January 1971, AWOL for 29 days from 6 April through 4 May 1971, AWOL (in a Deserter status) for 1,160 days from 5 May 1971 through 7 July 1974, and in prison for 29 days from 8 July through 5 August 1974.

4.  The applicant's military personnel records contain a DD Form 458 (Charge Sheet), dated 24 July 1974, that shows the Commander, Personnel Control Facility (PCF), U.S. Army Field Artillery Center and Fort Sill (USAFACFS), Fort Sill, Oklahoma, preferred charges against the applicant in that he did, on or about
6 April 1971, without authority, absent himself from his organization, to wit: Company A, 51st Engineer Battalion, Fort Campbell, Kentucky, and did remain so absent in desertion until 8 July 1974.

5.  On 30 July 1974, 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 legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable, of the effects of the request for discharge, and the procedures and rights available to the applicant.

6.  The applicant signed his request for discharge which showed that he was making the request of his own free will and had not been subjected to any coercion whatsoever by any person, that he acknowledged guilt to the offenses charged, that 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 she may be ineligible for many or all benefits administered by the Veterans Administration, 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.  The applicant’s request also shows he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant elected to submit statements in his own behalf and did submit a statement in his own behalf.  The applicant’s request for discharge also shows he was provided counsel by Captain R____ D. D____, Judge Advocate General Corps.



7.  The applicant submitted a statement to the Commanding General, dated
30 July 1974, in which he offers his prior record of service.  He also stated, “I want out of the Army because I have family problem[s] with my parent and wife and I can’t ajust (sic) [to] the military live (sic) that (sic) why I [went] AWOL.  I’m planning on working for Sandia Indian.”

8.  On 1 August 1974, the Commander, PCF, USAFACFS, Fort Sill, Oklahoma, recommended approval of the applicant’s request for discharge from the Army under the provisions Army Regulation 635-200, chapter 10.  The company commander stated that the applicant was charged with an AWOL of 1,189 days, surrendered to civilian authorities, and his period of AWOL is excessive.  The company commander recommended approval of the applicant’s request and issuance of an Undesirable Discharge Certificate.

9.  On 2 August 1974, the Commander, USAFACFS, Fort Sill, Oklahoma, the general court-martial convening authority and separation authority in the applicant’s case, reviewed and approved the applicant’s request for discharge 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 under the provisions of Army Regulation 635-200, chapter 10.

10.  The applicant's military personnel records contain a DD Form 214 that shows he entered this period of active duty on 16 May 1969 and was discharged on 6 August 1974 with a character of service of under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10 with the separation program designator (SPD) code "KFS."  This document also shows that at the time of his discharge the applicant had completed 1 year, 10 months, and 29 days of net active service this period.  The DD Form 214 also shows that the applicant had 1,211 days time lost under Title 10, U.S. Code, section 972.

11.  The applicant’s military personnel records are absent any evidence that he submitted a request for emergency leave, compassionate reassignment, or hardship discharge based on personal/family reasons.

12.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

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

14.  In support of his application, the applicant provides the following documents.

   a.  DD Form 214 with an effective date of 6 August 1974 and DD Form 258A, dated 6 August 1974, that show, in pertinent part, the applicant was discharged on 6 August 1974 with a character of service of under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.
   
   b.  Two DA Forms 4980-14, dated 31 March 1970 and 18 August 1970 and Army Commendation Medal Citation for the period from 1 February to 31 March 1970.  These documents show the applicant was awarded the Army Commendation Medal for meritorious achievement in the RVN from 1 February to 31 March 1970 and awarded a second Army Commendation Medal for meritorious service in the RVN from October 1969 to October 1970.
   
   c.  State of New Mexico, County of Bernalillo, Marriage License and Certificate, recorded on 10 September 1971, that shows the applicant married Clara T___ on 28 August 1971.

   d.  Two State of New Mexico, New Mexico Department of Health, Certificates of Birth, with dates of registration of 28 April 1969 and 10 December 1990, and Office of the Governor - Tribal Enrollment, Certificate of Degree of Indian Blood, issued on 17 December 2008.  These records, in pertinent part, document the births of the applicant and his wife’s children (i.e., two daughters and one son).

   e.  Statement by Clara G______, undated, the applicant’s spouse, who offers a description of the applicant’s personality both before he entered the Army and after he returned from Vietnam.  Mrs. G______ also states that she was unaware of the applicant’s periods of AWOL because he never talked about his military service, she assumed he had been separated from the Army, and was surprised when the applicant was arrested by military authorities in July 1974.  She also provides a summary of the applicant’s post-service problems with alcohol, his employment history, and medical problems.  Mrs. G____ states the applicant suffered in his life due to the trauma he endured in Vietnam.  She concludes by requesting upgrade of the applicant’s discharge so that he may afforded proper medical attention by the Government he served and defended.

   f.  Pueblo of Jemez, Police Department, letter, dated 31 December 2008, that shows there were no violations or incident reports found by the Pueblo of Jemez Police Department pertaining to the applicant.

   g.  Copies of a 2007 Federal Tax Return Summary, 1040A, Schedule EIC, 2007 New Mexico Tax Return Summary, 2007 PIT-1, 2007 PIT-RC, Federal Carryover Worksheet - 2007, Tax Payments Worksheet - 2007, and Santa Barbara Bank and Trust Refund Processing Agreement (all pertaining to the applicant and his spouse).  These records, in pertinent part, document the applicant’s dependents, income, and Federal and State tax refunds.

15.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon ETS; authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service.

16.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

17.  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, in effect, his discharge should be upgraded because he served his country with his utmost ability, honor, pride, and respect; he continues to suffer from his experiences from his service in the RVN; and upgrade of his discharge will allow him to receive government benefits.

2.  There is no evidence that the applicant submitted a request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal/family reasons.  There is also no evidence of record that Army officials denied such a request during the period of service under review.

3.  The evidence of record confirms that the applicant’s request for separation under the 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.  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.

4.  The evidence of record shows the applicant incurred a 2-year active duty service commitment on 16 May 1969 and he had a total of 1,211 days (i.e., more than 3 years and 3 months) of time lost during the period of service under review.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a honorable or  general discharge under honorable conditions.
 
5.  The applicant's post-service conduct, commitment to family, and service to his tribal community since his discharge were carefully considered.  The applicant’s good post service conduct and achievements are noteworthy, but is not so meritorious as to warrant an upgrade of his discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for government benefits.

7.  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)                                         AR20090003134



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ABCMR Record of Proceedings (cont)                                         AR20090003134



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