BOARD DATE:	  February 25, 2010

		DOCKET NUMBER:  AR20090011039 


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, in effect, that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he had problems adjusting to life and stress.  He states that he completed his tour of duty in Vietnam and was wounded and sprayed with a chemical.  He states that he has had a problem for all these years without being provided any help and that he needs some help now.  He states that he has never received his Purple Heart even though he was wounded on 25 February 1969.  He has flashbacks from the time that he served in Vietnam.  He states that he sometimes has problems with his foot.  He concludes by stating that he needs his discharge changed from other than honorable to honorable so that he might get a little help.

3.  The applicant provides copies of an undated letter from an unknown source informing him that he was awarded the Bronze Star Medal and the Purple Heart; General Order Number 1000, dated 23 April 1969; U.S. Army Vietnam message, date time group 261658Z FEB 69; Western Union Telefax, dated 27 February 1969; his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); and a copy of his DA Form 20 (Enlisted Qualification Record).

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.  On 29 August 1967, the applicant enlisted in the Regular Army in Raleigh, North Carolina, for 3 years in pay grade E-1.  He successfully completed his training as a light weapons infantryman and he was promoted through the ranks to specialist four (E-4).

3.  The applicant was reassigned to Vietnam on 14 April 1968 and while he was in Vietnam his conduct and efficiency ratings were “excellent.”  He returned to the continental United States on 20 April 1969.

4.  Headquarters, 173d Airborne Brigade, General Orders Number 994, dated 23 April 1969, awarded the applicant the Purple Heart for wounds received in connection with military operations against a hostile force in the Republic of Vietnam on 26 February 1969.  Headquarters, 173d Airborne Brigade, General Orders Number 1000, dated 23 April 1969, awarded him the Bronze Star Medal for meritorious service in connection with military operations against a hostile force in the Republic of Vietnam from 15 April 1968 to 13 April 1969.

5.  On 25 June 1969, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 28 May 1969 until on or about 11 June 1969.  His punishment consisted of a reduction in pay grade (suspended for 4 months) and a forfeiture of pay.

6.  On 18 November 1969, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

7.  On 28 January 1970, NJP was imposed against the applicant for being AWOL from 26 January 1970 until on or about 27 January 1970.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

8.  On 19 March 1970, NJP was imposed against the applicant for being AWOL from 24 February 1970 until on or about 28 February 1970; and from 1 March 1970 until on or about 16 March 1970.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction and extra duty.

9.  The applicant had NJP imposed against him a fifth time on 8 April 1970 for being AWOL from 24 March 1970 until on or about 30 March 1970.  His punishment consisted of a reduction in pay grade, restriction, and extra duty.

10.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The DD Form 214 he was furnished shows he was discharged on 21 October 1971 under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 8 months, and 9 days of total active service and he had approximately 533 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate.

11.  The applicant's DD Form 214 and his DA Form 20 show that he was also AWOL from 8 January 1970 until 19 January 1970, 1 April 1970 until 2 April 1970, 10 April 1970 until 14 April 1970, and 18 April 1970 until 2 August 1971.

12.  The available records do not show the applicant applied to the Army Discharge Review Board 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 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 submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation an undesirable discharge was normally considered appropriate.

14.  Paragraph 3-7a of Army Regulation 635-200 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.

15.  Paragraph 3-7b of Army Regulation 635-200 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 based on his inability to adjust to life and stress and on his tour of duty in Vietnam.

2.  His contentions have been considered and while he is commended for the sacrifices he made in service to the United States during the Vietnam War, his records show that he had NJP imposed against him on at least five separate occasions and he had approximately 533 days of lost time due to AWOL.

3.  There is no evidence in the available record nor has the applicant submitted any evidence to show that he was sprayed with a chemical.  Additionally, there is no evidence in the available records that shows he made any attempt to seek help through his chain of command for any medical or mental problems that he now contends he is experiencing as a result of his service in Vietnam.  In the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

4.  In order to justify correction of a military record, the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090011039



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ABCMR Record of Proceedings (cont)                                         AR20090011039



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