IN THE CASE OF:	

		BOARD DATE:	3 December 2009  

		DOCKET NUMBER:  AR20090010376 


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 states his service was honorable until he came back from Vietnam.  He states that he was young and scared with everything happening and they were called baby killers and spat on during that time.  He concludes that he was just too young and he felt he could not handle the situation.

3.  The applicant provides a self-authored letter, dated 6 August 2009; a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 30 November 1971; and a work history letter from his former employer, dated 6 April 2009, 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 enlisted in the Regular Army (RA) on 27 December 1968 for a period of 3 years.  Upon completion of initial entry training he was awarded military occupational specialty (MOS) 94B (Cook).  On 30 December 1969, he was discharged for the purpose of immediate reenlistment.  He reenlisted on
31 December 1969 for 3 years.  He served in Vietnam from 4 April 1970 to
11 March 1971.  The applicant's primary MOS changed to 64B (Heavy Vehicle Driver) on 19 November 1970.

3.  On 28 May 1971, the applicant accepted nonjudicial punishment under Article 
15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 17 May 1971 to 28 May 1971.

4.  On 1 November 1971, charges were preferred against the applicant for being AWOL from 5 August 1971 to 26 September 1971 and from 29 September 1971 to 30 October 1971.

5.  On 2 November 1971, the applicant was evaluated by the Mental Hygiene Consultation Service, Fort Benning, GA.  He was found mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.  He was psychiatrically cleared for administrative action as deemed appropriate by his command.

6.  On 4 November 1971, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  He indicated in his request that he understood he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate, that he would be deprived of many or all Army benefits, that he might be deprived of many or all benefits administered by the Veterans Administration (VA), 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 expect to encounter substantial prejudice in civilian life because of an undesirable discharge.

7.  On 17 November 1971, the appropriate authority approved the applicant's request and directed he receive an Undesirable Discharge Certificate.  On 
30 November 1971, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service.  He completed a total of 2 years, 7 months, and 29 days of creditable active service with 96 days of time lost due to AWOL.

8.  On 28 January 1974, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.

9.  The applicant provided a self-authored letter which states, in part, that the reason for his undesirable discharge is that he was suffering from Post Traumatic Stress Disorder (PTSD) and he is still suffering today because of the war in Vietnam.  He states he served the U.S. Army honorably until he came back from the war.  He adds that he worked in coal mines for 23 years and he was an on-time employee with no disciplinary problems.  He was called to preach God's word in 1986 and he has tried to live a Christian life since then.  He asks that his discharge be changed since this problem is service-related, so he can receive help from the VA for his PTSD.

10.  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. 

11.  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.

12.  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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request was made under coercion or duress.

2.  There is no available evidence which shows the applicant's behavior was adversely affected by his service in Vietnam or that he suffered from PTSD.  Additionally, discharges are not upgraded solely to allow an individual to obtain medical benefits.

3.  The applicant contends that he was young and scared with everything happening; however, age is not a sufficiently mitigating factor.  He was 19 years old at the time of his first AWOL offense and there is no evidence that indicates he was any less mature than other Soldiers of the same age who completed their terms of military service.

4.  The applicant's record of indiscipline includes punishment under Article 15, UCMJ and 96 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory. Therefore, he is not entitled to a general, under honorable conditions or an honorable discharge.

5.  The applicant's post-service conduct and accomplishments are noted; however, in order to justify a 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 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)                                         AR20090010376



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ABCMR Record of Proceedings (cont)                                         AR20090010376



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