IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090003364 


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 under other than honorable (UOTHC) discharge be upgraded to general or honorable.

2.  The applicant states that he had submitted three earlier requests but did not follow up on them because of moving around.  He contends that he had personal problems that impaired his ability to serve.  For a period of time his mind just snapped.  It all started when he joined the Army and went to the Republic of Vietnam.  He got a letter from his girlfriend who said she was going to have his baby.  Four months later, she wrote to say that she had lost the baby.  When the applicant returned to the United States after his combat tour, his girlfriend was having another man's baby.  They tried to work out their problems, but with his being assigned to Fort Jackson, South Carolina, and not getting home very often, the same thing happened again and his mind snapped and he lost all sense of direction.  Up to that point he had served his country honorably.  The applicant believes that his discharge should be upgraded because he volunteered for service, was named the outstanding Soldier of the Guard during basic training, and served in the Republic of Vietnam and fought honorably.  Now, he is fighting cancer and is in need of some help [Department of Veterans Affairs (VA) medical benefits] from his country.

3.  The applicant provides copies of his promotion orders; letters to his mother and father from the Commander in Chief, United States Army, and his brigade commander; award citations for the Army Commendation Medal and the Bronze Star Medal; and his certificate for award of the Combat Infantryman Badge.

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.  On 2 November 1967, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 23 March 1968, the applicant departed Fort Lewis, Washington, for duty in the Republic of Vietnam.  He was subsequently assigned for duty as a rifleman with the 505th Infantry Regiment.

4.  On or about 10 April 1969, the applicant departed the Republic of Vietnam for duty as a drill sergeant at Fort Jackson, South Carolina.

5.  On 18 December 1969, the applicant was promoted to sergeant, pay 
grade E-5.

6.  On 19 January 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for a period of 6 days.  The punishment included a forfeiture of $73.00 pay per month for 1 month and 14 days of restriction and extra duty.

7.  On 5 May 1970, the applicant accepted NJP for failure to report at the prescribed time to his place of duty.  The punishment included 14 days of restriction and extra duty.

8.  On 2 June 1972, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from on or about 2 June 1970 to on or about 31 May 1972.

9.  On 6 June 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

10.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

11.  On 16 June 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  On 21 June 1972, the applicant was discharged accordingly.  He had completed a total of 2 years, 7 months and 21 days of creditable active duty service and had accrued 734 days of time lost due to AWOL and pre-trial confinement.

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

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 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.

14.   Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

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.  The applicant contends that he had personal problems that impaired his ability to serve.  The applicant believes that his discharge should be upgraded because he volunteered for service, was named the outstanding Soldier of the Guard during basic training, and served in the Republic of Vietnam and fought honorably.  Now, he is fighting cancer and is in need of some help from his country.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

3.  The applicant's record of good service is greatly diminished by the two NJP's that he received and the numerous periods of AWOL totaling more than 2 years.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

4.  The applicant's desire to obtain veterans' medical benefits is not justification for an upgrade of an individual's discharge.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090003364



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ABCMR Record of Proceedings (cont)                                         AR20090003364



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