IN THE CASE OF:	  

		BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090009616 


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 upgraded to honorable.

2.  The applicant states, in effect, that his exposure to the chemical Agent Orange was due to no fault of his own.  He contends that his past, present and continuing medical conditions can only be treated via the Department of Veterans Affairs (DVA) if his discharge is upgraded.

3.  The applicant provides service medical records 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 enlisted in the Regular Army on 12 March 1968 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 51N (water supply specialist).  He arrived in Vietnam on 31 July 1968.  On 27 February 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 February 1969 for a period of 3 years.     

3.  While on special leave from Vietnam, the applicant went absent without leave (AWOL) on 12 January 1970 and returned to military control on 21 May 1973.  He went AWOL again on 3 June 1973 and returned to military control on 17 May 1974.  

4.  On 22 May 1974, the applicant underwent a separation physical examination and was found qualified for separation.  He reported that his health was "GOOD" in item 8 (Statement of Examinee's Present Health and Medications Currently Used) on his Standard Form 93 (Report of Medical History).

5.  On 28 May 1974, charges were preferred against the applicant for the AWOL periods.  

6.  On 28 May 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (currently known as the DVA) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that he could not adjust to the Army and that he went AWOL due to marital problems and his father was sick.  

7.  On 4 June 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

8.  Accordingly, the applicant was discharged with an undesirable discharge on 
7 June 1974 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 1 year, 10 months, and 13 days of creditable active service with 1,455 days of lost time due to being AWOL.  

9.  In support of his claim, the applicant provided numerous service medical records, dated 1968 and 1969, which show he was treated for headaches, feet trouble, cold symptoms, sore throat, and lower back pain.  

10.  On 23 October 2009, in an effort to expedite her father's case, the applicant's daughter provided medical records, dated 21 October 2009, which show the applicant was diagnosed with chronic obstructive pulmonary disease, pneumonia, hypertension, "mi-infrac-heart" attack, and tuberculosis.  She also indicated that her father's health was getting worse.      

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  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 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.  At the time, an undesirable discharge was normally considered appropriate. 

13.  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.  

14.  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's contentions and the medical documentation were carefully considered.  However, a discharge is not upgraded for the purpose of obtaining DVA benefits.  In 1974, the applicant indicated in his request for discharge that he understood he might be ineligible for many or all benefits administered by the DVA.
 2.  The applicant’s record of service during his last enlistment included 1,455 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Regrettably, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090009616



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ABCMR Record of Proceedings (cont)                                         AR20090009616



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