IN THE CASE OF:	  

		BOARD DATE:	19 November 2009

		DOCKET NUMBER:  AR20090009275 


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 upgrade of his undesirable discharge to an honorable discharge. 

2.  The applicant essentially states that he was told when he received his discharge that it would not be considered a dishonorable one and that he did not realize he would lose all of his benefits.  He also states that to not upgrade his discharge after he served almost 1 year in Vietnam would be an injustice.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); an undated self-authored letter; an undated third-party letter from his wife; a letter, dated 19 February 2009, from the National Personnel Records Center in St. Louis, MO; and 25 pages of his service medical and dental records in support of this 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 records show that he enlisted in the Regular Army (RA) on 10 September 1970 after receiving a moral waiver for two prior offenses of violating prohibition law and one offense of reckless driving.  He completed basic training at Fort Polk, LA, but during this time, he accepted nonjudicial punishment under Article 15 of the Uniform Code o Military Justice (UCMJ) for absenting himself without authority from his unit on or about 6 October 1970 and remaining so absent until on or about 11 October 1970.  His punishment consisted on a forfeiture of $29.00 and extra duty and restriction for 14 days.  After completing advanced individual training at Fort Leonard Wood, MO, he departed for the Republic of Vietnam on 30 March 1971 and he was assigned to the 290th Quartermaster Detachment.  He returned to the continental United States on 12 February 1972 and was assigned to Fort Lewis, WA.

3.  On 3 April 1972, the applicant went absent without leave (AWOL) and he remained in this status until he returned to military control on 23 April 1972.  On 
5 May 1972, he again went AWOL and remained in this status until he returned to military control on 2 June 1972 and was assigned to Fort Campbell, KY.  On
21 June 1972, the applicant was informed that charges had been preferred against him for the aforementioned offenses which were punishable under the UCMJ with a punitive discharge.

4.  On 22 June 1972, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separation - Enlisted Personnel).  He stated that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to it.  The applicant also acknowledged that he understood that if his request for discharge was accepted, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged that he understood that, as a result of issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  Although he indicated that statements in his own behalf would be submitted, none were contained in his separation packet.  Further, he confirmed that prior to completing his request for discharge, he had been afforded the opportunity to consult with counsel, and that he consulted with counsel on 7 June 1972, who fully advised him in this matter.

5.  On 23 June 1972, the proper separation authority approved the applicant's discharge under Army Regulation 635-200, chapter 10 and directed that he be furnished an Undesirable Discharge Certificate.  He also directed that he be reduced to the lowest enlisted rank.  On 28 June 1972, the applicant was discharged accordingly.  He was not awarded a personal decoration during his military service.

6.  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.

7.  The applicant provided an undated self-authored statement in which he essentially stated that his military service was fine until he went to Fort Lewis, and that he felt like he was being picked on because he had been to Vietnam.  He also contended that it seemed like it got worse when he complained and that he eventually went AWOL a couple of times.  He also stated that when he was at Fort Campbell, they gave him a way out of the service that was not a dishonorable discharge, but that he took it without realizing that he would lose everything.  He continued by essentially stating that he served a complete tour in Vietnam that should count for something and that he was only AWOL for 53 days altogether.  Additionally, he claims that he was wounded in Vietnam on 10 April 1971 and although it is not recorded in his military personnel records, it is in his service medical records.

8.  The applicant also provided copies of his service medical and dental records which show, in pertinent part, that he was treated for white phosphorous (WP) burns beginning on 12 April 1971.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the 


characterization of such a discharge.  An undesirable discharge certificate would 
normally be furnished an individual who was discharged for the good of the Service.  

10.  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.

11.  Paragraph 3-7b of the same regulation 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 undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant's claim that he was wounded in Vietnam was noted, as was the evidence showing that he was treated for WP burns in April 1971.  However, there is no indication in the evidence provided by the applicant that those WP burns were the result of hostile action.  There are no orders in his military records awarding him the Purple Heart and there is no entry for the applicant on the Vietnam Casualty Roster.  As a result, while the applicant claims that he was wounded in action, evidence of record shows that he was only injured while serving in Vietnam.

3.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial and at the same time acknowledged that he understood that he might be ineligible for veterans benefits.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

5.  The applicant's contentions and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct and his overall record of service.  His misconduct began almost immediately after entering the service and his service simply does not rise to the level of even a general 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 this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X____  __X____  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

The Board determined that 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)                                         AR20090009275



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ABCMR Record of Proceedings (cont)                                         AR20090009275



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