IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090005208 


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 undesirable discharge be changed to a general discharge.

2.  The applicant states he was told after he was discharged if he didn't get into any trouble after 6 years that he would receive a general discharge so he could get benefits from the Department of Veterans Affairs (VA) in the future.  He states he served 1 year in Vietnam.  After he left the service he worked for his father's company until it was sold in 2001.  His father needed him to take care of him until his death in 2006.  He took care of one of his father's children (from 1 of 4 marriages) until the child reached 22 years of age.  

3.  The applicant states he is now 58 years of age and can't work anymore because of his health.  He states he really needs some help and the VA Clinic in Rochester, NY is willing to help him based on his low income.

4.  The applicant provides, in support of his application, copies of his 
DD Form 214 (Report of Separation from Active Duty) with an effective date of 
28 November 1968 and his DD Form 214 with an effective date of 21 September 1972.



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 enlisted, with parental consent, in the Regular Army on 29 March 1968 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 45J (Aircraft Armament Repairman).

3.  On 28 November 1968, the applicant was discharged for immediate reenlistment.  He had completed 8 months of active service that was characterized as honorable.  He reenlisted on 29 November 1968 for a period 
of 3 years.

4.  The applicant was assigned to Headquarters and Headquarters Company, 588th Engineer Battalion in the Republic of Vietnam during the period from 
25 January 1969 to 7 January 1970.  He was promoted to sergeant/pay grade 
E-5 effective 15 January 1970.

5.  On 2 June 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for willfully concealing the fact that another Soldier was absent without leave (AWOL) and making a false statement with intent to deceive to his command sergeant major.  The punishment imposed consisted of reduction to specialist/pay grade E-4, forfeiture of $50 per month for 2 months, and extra duties for 30 days.  The applicant appealed his punishment and on 24 June 1970 his appeal was denied.

6.  On 16 March 1971, the applicant failed to return from ordinary leave and was declared AWOL.  He was dropped from the rolls on 14 April 1971.  He surrendered to military authorities on 23 April 1971.

7.  On 27 May 1971, the applicant pled guilty and was found guilty by a summary  court-martial of being AWOL during the period from on or about 16 March 1971 to on or about 23 April 1971.  His sentence consisted of reduction to private/pay grade E-1.

8.  On 1 July 1971, the applicant departed AWOL and remained absent until 
30 June 1972.

9.  On 17 July 1972, court-martial charges were preferred by Headquarters Command, United States Army Training Center, Infantry, Fort Dix, NJ, against the applicant for being AWOL during the periods from on or about 2 July 1971 to on or about 30 June 1972 and from on or about 16 March 1971 to on or about 5 May 1971.

10.  On 20 July 1972, the applicant signed his request for discharge for the good of the service indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He acknowledged he had been advised not to accept an undesirable discharge in the expectation that it will later be changed to a general or honorable discharge because the likelihood of that ever occurring was extremely rare.  The applicant did not submit any statements in his own behalf.

11.  The applicant's commander and intermediate commander recommended approval of the applicant's request for discharge and that he be furnished an Undesirable Discharge Certificate.

12.  On 24 August 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that he be furnished an Undesirable Discharge Certificate.

13.  On 21 September 1972, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service.  He had completed 2 years, 6 months, and 20 days of active service that was characterized as under conditions other than honorable.  He had 461 days of time lost.

14.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

15.  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.

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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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 he was told that after 6 years he could get a general discharge.  However, in his request for discharge he specifically acknowledged that the likelihood of his discharge being changed to a general or honorable discharge was extremely rare.  In addition, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the ADRB or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  The Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

2.  The applicant had been promoted to sergeant, a position of authority and responsibility.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in the patriotism, valor, fidelity, and professional excellence of the applicant.  As a sergeant, the applicant was in a position of trust and responsibility, and he was responsible for the welfare of those assigned under him.  The applicant violated this special trust and confidence.  

3.  The applicant had over 2 years in the Army when he received an Article 15, he was 10 days short of 3 years in the Army when he went AWOL the first time, and he had over 3 years of service when he went AWOL the second.  Therefore, it is reasonable to conclude the applicant was well aware of the consequences of his actions.

4.  The applicant voluntarily requested discharge, acknowledged that he may be discharged under other than honorable conditions, and that he would be furnished an Undesirable Discharge Certificate.  He also acknowledged that he may be ineligible for many or all veterans benefits from the VA.

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.
Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.  

7.  The applicant's post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

8.  The ABCMR does not upgrade discharges solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veterans benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

9.  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 that requirement.
10.  In view of the foregoing, there is an insufficient basis to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.

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)                                         AR20090005208





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090005208



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1