IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090005433 


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 under honorable conditions (general) discharge to fully honorable.

2.  The applicant states that the fact that he was awarded four awards of the Bronze Star Medal is one reason to upgrade his discharge.  He adds that, in effect, he suffers from medical problems and is in need of Department of Veterans Affairs medical benefits.

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 2 years on 27 January 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91A (Medical Corpsman).  He was honorably discharged on 26 September 1969 for the purpose of immediate reenlistment and subsequently executed a 3-year reenlistment on 27 September 1969 and a 6-year reenlistment on 21 June 1971. 
The highest rank/grade he attained during his military service was specialist five/E-5.

3.  The applicant's records also show he served in Germany from on or about 1 July 1969 to on or about 10 October 1969 and the Republic of Vietnam from on or about 19 November 1969 to on or about 2 November 1970 and again on or about 7 August 1971 to on or about 11 April 1972.

4.  The applicant's records further show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Army Commendation Medal, the Republic of Vietnam Campaign Medal with Device (1960), the Bronze Star Medal (1st Oak Leaf Cluster), two overseas service bars, and the Combat Medical Badge.

5.  On 25 July 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for being absent without leave (AWOL) from on or about 3 July 1972 through on or about 14 July 1972.  His punishment consisted of a forfeiture of $196.00 pay for 1 month (suspended for 90 days) and 14 days of extra duty.

6.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows an extensive history of lost time during the periods 2 October 1972 to 4 October 1972 (AWOL), 5 October 1972 to 15 January 1973 (AWOL), 16 January 1973 to 18 January 1973 (AWOL), 19 January 1973 to 5 February 1973 (confinement), and 5 March 1973 to 28 May 1973 (AWOL).

7.  On 6 February 1973, the applicant pleaded guilty at a summary court-martial to three specifications of being AWOL during the periods on or about 2 October 1972 to on or about 4 October 1972, on or about 5 October 1972 to on or about 16 January 1973, and on or about 16 January 1973 to on or about 19 January 1973.  He was sentenced to a reduction to specialist four/E-4.  The sentence was adjudged and approved on 9 February 1973.

8.  On 5 March 1973, the applicant departed his unit again in an AWOL status and was subsequently dropped from the Army rolls on 4 April 1973.  He was returned to military control on 28 May 1973.

9.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 9 August 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  This form shows he completed a total of 3 years, 11 months, and 4 days of creditable active service and had 223 days of lost time.

10.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s    15-year statute of limitation.

11.  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, an under other than honorable conditions discharge is normally considered appropriate.

12.  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.

13.  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 under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 9 August 1973 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.

4.  The applicant’s service in Vietnam and his multiple awards and decorations are noted.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence in the available records nor did the applicant provide documentation to warrant an upgrade of his discharge.

5.  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 this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090005433



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ABCMR Record of Proceedings (cont)                                         AR20090005433



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