IN THE CASE OF:	  

		BOARD DATE: 19 November 2009

		DOCKET NUMBER:  AR20090009302 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that the reason he was discharged with an Under Other than Honorable Conditions Discharge Certificate is because he did not complete all of his military service.  He explains that he only needed about 35 days to complete his remaining time in service.  The applicant maintains that his problems in the military did not occur until after his tour in Vietnam.  He adds that while in Vietnam he was introduced to drugs and when he returned from Vietnam he used drugs to deal with his depression.  The applicant states that he has tried to forget what he witnessed in the war.  He offers that these memories have kept him from fully participating in society and he has had a hard time concentrating and maintaining a job.  He also states that he has been homeless and living under a bridge.  The applicant states that he needs some type of treatment to deal with his medical issues.  The applicant concludes that he is 59 years old and has never received any type of help from the Department of Veterans Affairs (VA).

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) and documents from the Texas Department of Criminal Justice 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 record shows he enlisted in the Regular Army (RA) and entered active duty on 25 May 1970 for a period of 3 years.  He served in Vietnam from 16 November 1971 to 15 November 1972.

3.  On 7 May 1971, the applicant was convicted by a special court-martial (SPCM) for being absent without leave (AWOL) from his unit on 4 February 1971 to 27 April 1971.  His punishment consisted of confinement at hard labor for 90 days.

4.  On 5 December 1971, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 30 November 1971.  His punishment consisted of forfeiture of $36.00 per month for 1 month and extra duty for 14 days.

5.  On 7 June 1972, NJP was imposed against the applicant for being in an off-limits area and wrongfully possessing 16.28 grams of cannabis.  His punishment consisted of forfeiture of $100.00 pay per month for 1 month; extra duty for 20 days; and reduction to the rank/grade of private first class (PFC)/E-3, suspended for 60 days.

6.  On 23 April 1974, charges were preferred against the applicant for being AWOL from 15 August 1973 to 14 April 1974.

7.  On 26 April 1974, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

8.  The applicant signed his request for discharge which showed that he was making the request under his own free will, that he was afforded the opportunity to speak with counsel, that he may be furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected not to submit a statement in his behalf.

9.  On 6 May 1974, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that he be issued an Undesirable Discharge Certificate.

10.  The applicant's DD Form 214 shows that on 16 May 1974, he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  The applicant had completed 2 years, 10 months, and
25 days of active service with 392 days lost.

11.  Documents from the Texas Department of Criminal Justice show that on 
27 February 2000, the applicant was convicted and sentenced to 8 years confinement for possession of marijuana and controlled substances.  The documents also show that while the applicant was incarcerated, he suffered from mental health issues that required him to receive a clearance from a mental health representative prior to being assigned work.

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

13.  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, the 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. 

14.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states that his undesirable discharge, characterized as under other than honorable conditions, was based on his failure to complete his military service.  However, evidence of record shows that the applicant voluntarily requested separation under the provisions of chapter 10 of Army Regulation
635-200 for the good of the service to avoid trial by court-martial.

2.  The applicant maintains that his problems in the military did not occur until after his tour in Vietnam.  However, evidence of record shows that the applicant was convicted by an SPCM on 7 May 1971, six months prior to his assignment in Vietnam.

3.  Additionally, the applicant argues, in effect, that his discharge should be upgraded so that he can receive needed medical treatment from the VA.  Unfortunately, there are no provisions in Army regulations that allow for the upgrade of a discharge for the sole purpose of securing veterans benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrants the upgrade.

4.  The applicant's record of service included an SPCM conviction, two NJPs, and 392 days of time lost.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting the applicant's 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)                                         AR20090009302



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ABCMR Record of Proceedings (cont)                                         AR20090009302



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