IN THE CASE OF:	  

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090010162 


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 discharge characterized as under conditions other than honorable be upgraded to general under honorable conditions.

2.  The applicant states that he served 1 year in Vietnam and was then ordered to Fort Hood, Texas.  He maintains that after serving 2 years in Texas, something snapped and he began a series of absences without leave (AWOL).  He adds that he believes this was some type of brain disorder caused by Agent Orange.  The applicant states that he was very young and dumb at the time and he is very sorry for his actions.  He offers that he is now a different person, but he is experiencing problems from his exposure to Agent Orange.  He adds that in order to draw benefits and care for his 9-year old child, he needs his discharge changed.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), and a supporting statement from his medical doctor.

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 and entered active duty on 10 January 1966 at the age of 19.  He was honorably discharged on 27 January 1967 for immediate reenlistment on 28 January 1967.  He served in Vietnam from 26 May 1967 to 25 May 1968.

3.  On 4 February 1966, nonjudicial punishment (NJP) was imposed against the applicant for being AWOL from his place of duty on 1 February 1966 and confined by civil authorities.  His punishment consisted of 14 days of extra duty and 14 days of restriction (suspended until 6 March 1966).

4.  On 1 October 1969, NJP was imposed against the applicant for being AWOL from 23 September 1969 until 24 September 1969.  His punishment consisted of forfeiture of $50.00 per month for 1 month.

5.  On 27 November 1969, NJP was imposed against the applicant for parking a vehicle in an unauthorized place.  His punishment consisted of 7 days of restriction.

6.  On 15 April 1970, NJP was imposed against the applicant for being AWOL from 31 December 1969 to 25 March 1970.  His punishment consisted of reduction to the rank/grade of specialist/E4.

7.  On 8 October 1970, charges were preferred against the applicant for being AWOL from 4 May 1970 to 16 July 1970 and from 30 July 1970 to 8 October 1970.

8.  On 30 October 1970, 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).

9.  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 VA 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.

10.  On 3 November 1970, the applicant underwent a separation medical examination in which he listed his health as being "good."  He was medically cleared for separation.

11.  On 12 November 1970, 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.

12.  The applicant's DD Form 214 shows that he was separated with an undesirable discharge, characterized as under conditions other than honorable, on 20 November 1970.  The applicant had completed 4 years, 2 months, and
12 days of active service with over 220 days of lost time due to AWOL.

13.  In a supporting statement, the applicant's medical doctor said that in 1970 he prescribed Xanax for the applicant's high anxiety and treated him for diabetes.  He opined that the applicant had many health problems which may have been caused by Agent Orange, to include his AWOL in the 1970's.  He stated that he could not prove his assumption, but suggested that the applicant be tested for Agent Orange due to his service in Vietnam.

14.  The applicant provided a copy of his statement to the VA that shows that he disagreed with its decision to deny him benefits based on his Undesirable Discharge Certificate.

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

16.  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 VA 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.

17.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

18.  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 argues that his discharge should be upgraded because he was young and dumb at the time he entered the military.  He states that he was exposed to Agent Orange while assigned in Vietnam.  He believes that both his age and exposure to Agent Orange led to his indiscipline.

2.  The records show that the applicant was 19 years old at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service during difficult times.  The evidence of record shows that the applicant received his first Article 15 on 6 March 1966, prior to his tour in Vietnam.  There is no evidence and the applicant has not provided any to show that he was exposed to Agent Orange during his tour in Vietnam.  Therefore, his contention that his age and exposure to Agent Orange led to his indiscipline is not sufficient as a basis for upgrading his discharge.

3.  The applicant also states that he needs his discharge upgraded to secure VA benefits.  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 warrant the upgrade.

4.  The applicant's record of service included four records of NJP and over 220 days of time lost due to AWOL.  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 to upgrade the applicant's discharge.

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)                                         AR20090010162



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ABCMR Record of Proceedings (cont)                                         AR20090010162



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