IN THE CASE OF:	  

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20090004361 


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 discharge.

2.  The applicant states that as a condition of his reenlistment in the Regular Army, it was stipulated that he would return to Vietnam for a second tour after a year of stateside duty; however, after he signed all reenlistment documents, his commanding officer threw his request to return to Vietnam in the trash and he was denied such transfer.  He adds that he subsequently started drinking alcohol which only led to further problems including nonjudicial punishment, a court-martial, and periods of absence without leave (AWOL).  He also states that after his discharge he experienced various personal, marital, medical, and professional difficulties.  He initially received help from the Veterans Administration (VA); however, he was notified in 2000 that he was no longer eligible for VA benefits based on the character of his service.  He concludes that he is a decorated combat veteran and in serious need of medical treatment and counseling for disabilities incurred during combat.  

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 2 November 1971 and 25 April 1973, 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 for a period of 3 years on 1 August 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 62E (Crawler Tractor Operator).  The highest rank/grade the applicant attained during this period of military service was specialist five (SP5)/E-5.  He was honorably discharged for the purpose of immediate reenlistment on 2 November 1971.

3.  The applicant's records further show he served in the Republic of Vietnam from on or about 10 June 1970 to on or about 1 May 1971.  His records also show he was awarded the Vietnam Service Medal, the Army Commendation Medal (2nd Award), the Vietnam Campaign Medal, and the Bronze Star Medal.

4.  On 3 November 1971, while assigned to the 55th Engineer Company, Fort Riley, KS, the applicant executed a 6-year reenlistment in the Regular Army.  Item 48 of his DD Form 4 (Enlistment Contract) shows he reenlisted for a "Present Duty Assignment" option.  There is no indication in his reenlistment contract that he was promised a transfer to the Republic of Vietnam.

5.  On 18 July 1972, 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 on or about 7 July 1972 through on or about 11 July 1972.  His punishment consisted of a forfeiture of $50.00 pay and 10 days of extra duty.

6.  On 28 July 1972, the applicant pleaded guilty at a summary court-martial to one specification of being AWOL during the period on or about 19 July 1972 through on or about 26 July 1972.  The Court sentenced him to a forfeiture of $261.00 pay.  The sentence was adjudged and approved on 28 July 1972.

7.  On 6 September 1972, the applicant pleaded guilty at a summary court-martial to one specification of being AWOL during the period on or about 4 August 1972 through on or about 28 August 1972.  The Court sentenced him to a reduction to specialist four/E-4 and a forfeiture of $255.00 pay.  The sentence was adjudged and approved on 6 September 1972.

8.  On 4 October 1972, the applicant departed his unit in an AWOL status again and was subsequently dropped from the Army rolls on 2 November 1972.  He remained in this status until he was apprehended by civil authorities in Clearwater, FL, and returned to military control at Fort Gordon, GA, on 7 February 1973.

9.  On an unknown date, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 2 November 1972 through on or about 7 February 1973.

10.  On 20 February 1973, 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 (Personnel Separations).

11.  In his request for discharge, the applicant indicated that he 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On an unknown in 1973, the applicant's immediate commander submitted a certificate indicating that the applicant had been a substandard Soldier and that despite numerous counseling sessions by members of his chain of command, all attempts at his rehabilitation failed.  He added that the applicant had a record of AWOL and at the time, he was pending a civilian charge of rape.  The immediate commander further remarked that the applicant's military appearance was always sloppy and in need of repair and that his discharge was in the best interest of the Army.


13.  On 9 April 1973, the applicant’s intermediate commander recommended approval and the issuance of an Undesirable Discharge Certificate.  

14.  On 12 April 1973, 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.  On 25 April 1973, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 3 years, 3 months, and 13 days of creditable active military service and had 162 days of lost time.

15.  On 24 December 1980, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

16.  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.

17.  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.

18.  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 combat service in the Republic of Vietnam as well as his awards and decorations were noted.  Additionally, his reenlistment contract was carefully considered; however, the evidence of record shows that he reenlisted to stay at Fort Riley, KS.  There is no evidence that he elected to return to Vietnam or that he was promised a transfer to Vietnam.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his repeated patterns of misconduct and indiscipline were the result of not being allowed a transfer to Vietnam.

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant consulted with counsel and was advised of the contemplated trial by court-martial for his offenses.  Only then did he voluntarily, willingly, and in writing, request 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, that would warrant an upgrade of his discharge.  The 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 an honorable or a general 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)                                         AR20090004361



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ABCMR Record of Proceedings (cont)                                         AR20090004361



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