IN THE CASE OF:	  

		BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090004570 


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 under other than honorable conditions be upgraded to a general discharge under honorable conditions or an honorable discharge.

2.  The applicant states he was young, immature, and afraid when he was in Vietnam.  He states he had an opportunity to go to the rear for awhile.  He states he had only 97 days left in Vietnam and he should have returned to his unit.  He states he now realizes he should have gone back, but because of his immaturity he made the wrong decision.  He states he now experiences flashbacks and has been diagnosed with diabetes.  He states he needs his discharge upgraded so he can receive veteran's benefits.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with an effective date of 1 February 1971 in support of his application.

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 2 days short of his 20th birthday when he was inducted on 20 June 1969.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11C (Indirect Fire Controlman).

3.  On 17 February 1970, the applicant was assigned to Headquarters and Headquarters Company, 1st Brigade, 25th Infantry Division, in the Republic of Vietnam.

4.  On 6 March 1970, the applicant was assigned to Company A, 1st Battalion (Mechanized), 5th Infantry, 25th Infantry Division, in the Republic of Vietnam.

5.  The applicant was convicted by a special court-martial of two specifications of failure to obey a lawful order from his superior commissioned officer to report for transportation for return to the field.  His punishment consisted of 4 months of confinement at hard labor, reduction to private/pay grade E-1, and forfeiture of $50.00 per month for a period of 4 months.  The sentence was adjudged on 11 July 1970.

6.  On 29 July 1970, the convening authority approved the sentence, but the execution of that portion adjudging confinement at hard labor was suspended for a period of 4 months and the applicant was to be kept probationally at the rank of private first class for a period of 4 months.  On 6 August 1970, the suspension and reduction were vacated and ordered executed.

7.  The applicant's records show he departed absent without leave (AWOL) on 23 October 1970 and returned on 3 November 1970.

8.  The applicant's complete packet for requesting discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) was not available for review.

9.  On 8 January 1971, the applicant's commander recommended approval of the applicant's 14 December 1970 request for discharge for the good of the service.  A copy of this request was not available for review.

10.  On 28 January 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be issued an Undesirable Discharge Certificate.

11.  On 1 February 1971, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 by reason of discharge for the good of the service.  He had completed 1 year, 5 months, and 21 days of active service that was characterized as under other than honorable conditions.  He had 51 days of time lost.

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, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  Army Regulation 635-200 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.  

15.  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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young, immature, and afraid when he was in Vietnam.  The applicant’s age at the time of his induction and when he was assigned in the Republic of Vietnam was noted.  However, many Soldiers were enlisted and deployed at a young age and went on to complete their enlistments and receive honorable discharges.  Fear was a factor that was not unique to young Soldiers in a combat area.  However, many Soldiers overcame and controlled their fear, completed their tour in Vietnam, and completed their enlistment honorably.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

2.  Although the applicant's complete separation package was not available for review, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have had to have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant acknowledged that he could receive an undesirable discharge.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the Department of Veterans Affairs.

6.  Failure to obey a lawful order by a commissioned officer in a combat zone is considered a serious offense as evidenced by the court's sentence of 4 months of confinement at hard labor.  The applicant then went AWOL upon release from confinement, although the circumstances of this period of AWOL were not available for review.  Therefore, the applicant's service was unsatisfactory and there is no basis to upgrade his discharge to a general discharge under honorable conditions or to an honorable 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.



      ___________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)                                         AR20090004570



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ABCMR Record of Proceedings (cont)                                         AR20090004570



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