IN THE CASE OF:	  

		BOARD DATE: 	        16 July 2009

		DOCKET NUMBER:  AR20090004413 


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, that his undesirable discharge be upgraded to general. 
  
2.  The applicant states that he enlisted when he was 17 years of age.  He later reenlisted for duty in Alaska and subsequently put in for assignment to the Republic of Vietnam.  In the Republic of Vietnam he served in his secondary military occupational specialty (MOS) of 11B (Light Weapons Infantryman) with the 503rd Infantry (Airborne) Regiment.  He was point man for 15 months.  His service in the Republic of Vietnam has caused him to suffer some physiological problems.  After completing 4 years, 8 months and 23 days of service to his country, he was discharged on 8 March 1973.  Forty years have passed and he is now in need of medical care.  This discharge upgrade would provide him with the medical benefits that he now needs. 

3.  The applicant provides, in support of his application, a copy of two 
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), issued on 17 December 1968, and 8 March 1973. 

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 25 January 1968, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded MOS 76Y (Armorer/Unit Supply Specialist).  

3.  On or about 20 March 1969, the applicant was assigned duty as an armorer with the 172nd Support Battalion in Alaska.

4.  On or about 10 April 1970, the applicant was assigned duty with the 503rd Infantry Regiment in the Republic of Vietnam.  While with this unit he performed duty as an automatic rifleman and as an armorer.

5.  On 10 March 1971, the applicant was promoted to specialist five, pay grade E-5.

6.  On 2 July 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully disobeying a lawful order; being disrespectful in language; violating a lawful general regulation by being in a designated restricted area; stealing a bicycle; and for unlawful assault.  The punishment included reduction to pay grade E-4 and a forfeiture of $165.00 pay per month for 2 months.  The applicant did not appeal the punishment.

7.  On or about 19 July 1971, the applicant returned to the United States for duty at Fort Campbell, Kentucky.

8.  On 1 June 1972, the applicant accepted NJP for being absent without leave (AWOL) from on or about 1 May to 29 May 1972.  The punishment included reduction to pay grade E-2, a forfeiture of $160.00 pay per month for 2 months, 30 days of restriction and 15 days of extra duty.  The applicant did not appeal the punishment.

9.  The applicant was AWOL during the period from 26 August to 3 October 1972.  There is no available evidence of any punishment rendered for this misconduct.

10.  On 20 February 1973, charges were preferred against the applicant under the UCMJ for violation of Article 86, being AWOL during the period from on or about 10 December 1972 to 13 February 1973.

11.  On 22 February 1973, 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, chapter 10. 

12.  In his request for discharge, the applicant indicated he understood that if his request for discharge 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.   

13.  On 3 March 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 8 March 1973, the applicant was discharged accordingly.  He had completed a total of 4 years, 8 months, and 23 days of creditable active military service and he had accrued 145 days of time lost due to being AWOL.

14.  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.

15.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  An undesirable discharge was normally considered appropriate.

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


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 that he now suffers from physiological problems resulting from his service in the Republic of Vietnam and he needs his discharge upgraded in order to obtain veterans medical benefits.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.  The applicant's record of good service is greatly diminished by the numerous periods of AWOL and by the circumstances of the discharge.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

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

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 the aforementioned requirement.

7.  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)                                         AR20090004413



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ABCMR Record of Proceedings (cont)                                         AR20090004413



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