IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011245 


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.

2.  The applicant states in the summer of 1969 he spent about two months with the 9th Infantry Division in the Mekong Delta in the Republic of Vietnam (RVN). He adds that he redeployed to the United States due to a reduction in troops.

   a.  He states he volunteered for another tour of duty in Vietnam and he was assigned to Company C, 2nd Battalion, 502nd Infantry, 101st Airborne Division (Airmobile) from July 1970 to May 1971.  He describes his medical evacuation from the RVN due to a collapsed lung, his subsequent diagnosis with an upper body infection, and the difficulties of his medical treatment.
   
	b.  He states he was eventually assigned to the 1st Cavalry Division, Fort Hood, TX, and adds that he was not up to his full physical or mental potential.  He describes his poor physical health and his belief that there was something seriously wrong with him.  He adds that he began to drink heavily and he became reckless and uncaring.  As a result, his wife left him and she took their child with her.

	c.  He states that he asked his first sergeant and company commander to help him get assigned to Vietnam for another tour of duty, but they were not helpful.  He also states that due to his mental state at the time, he went absent without leave (AWOL).  He adds that he continued to drink heavily during this period and he became suicidal.
	d.  He states he eventually turned himself in at Fort Sill, OK, where he was confined in the stockade.  He adds he was then informed that he could request a discharge, he was given discharge papers, and he was told to sign them, which he did because he did not want to be returned to the stockade.

	e.  He concludes by stating that he regrets that he went AWOL and that he did not seek help during his stay at Fort Hood.

3.  The applicant provides copies of his three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

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.  A DD Form 214 shows the applicant was inducted into the U.S. Army and entered active duty on 7 December 1962, he was honorably released from active duty on 27 November 1964, and he was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  At the time he had completed 1 years, 11 months, and 21 days of net active service.  The DD Form 214 also shows he had completed 1 year, 1 month, and 6 days of foreign service in U.S. Army, Europe (USAREUR) in Germany.

3.  A DD Form 214 shows the applicant enlisted in the Regular Army (RA) and he entered active duty on 6 May 1968.  He was honorably discharged on 3 March 1969 for the convenience of the government to reenlist in the RA.  At the time he had completed 9 months and 27 days of net active service.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in Item 31 (Foreign Service) that he served in the RVN from 14 May through 16 August 1969 and from 24 July 1970 through 9 May 1971.


5.  At a summary court-martial on 25 March 1970 at Fort Lewis, WA, the applicant pled guilty to the charge and two specifications of being AWOL (from
2 November 1969 to 26 January 1970 and from 16 to 17 February 1970).  The applicant was found guilty of the charge and two specifications of AWOL.  He was sentenced to reduction to the rank/grade of specialist four (SP4)/E-4 and forfeiture of $100.00 pay per month for one month.  On 27 March 1970, the convening authority approved the sentence and ordered the sentence executed.

6.  On 30 October 1970, the applicant received nonjudicial punishment (NJP) under Article15, Uniform Code of Military Justice (UCMJ), for being AWOL from his unit from 24 to 26 October 1970.  His punishment consisted of reduction to private first class (E-3) and forfeiture of $56.00 pay for one month.

7.  A DD Form 458 (Charge Sheet), dated 22 December 1971, shows the Commander, Processing Control Facility, Headquarters Command, U.S. Army Field Artillery Center, Fort Sill, preferred charges against the applicant for being AWOL from 16 September to 21 December 1971.

8.  A Standard Form (SF) 88 (Report of Medical Examination), dated 4 January 1972, shows that a captain serving in the Medical Corps examined the applicant, found no disqualifying defects, and found the applicant qualified for separation.

9.  On 12 January 1972, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge and the document indicates that a statement in his own behalf was submitted with his request.

	a.  The applicant's separation packet shows that a first lieutenant, who was a member of the State Bar of Indiana, certified with his signature he had advised the applicant of the possible effects of an under other than honorable discharge, and of the procedures and rights available to him.

	b.  In his statement the applicant provides a summary of his military service, including his periods of AWOL, NJP, and summary court-martial.  He states, in pertinent part, "I am asking for this 200 discharge because I feel that the future of me and the Army would be a lot better off."

   c.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge and that an Undesirable Discharge Certificate be issued.

10.  On 25 January 1972, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

11.  A Statement of Medical Condition, dated 26 January 1972, shows the applicant acknowledged with his signature that, "To the baset of my knowledge, since my last separation examination there has been no change in my medical condition."

12.  The applicant's DD Form 214 shows he was discharged on 28 January 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and his service characterized as under other than honorable conditions.  At the time he had completed 2 years,
3 months, and 7 days of net active service this period and he had 228 days of time lost.

13.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

14.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

15.  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.  

16.  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.

17.  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 contends that his under other than honorable conditions discharge should be upgraded because of his poor mental and physical state at the time of his discharge.

2.  Records show that a medical official examined the applicant on 4 January 1972, found no disqualifying defects, and found that he was medically qualified for separation.  In addition, at the time of his discharge on 28 January 1972, the applicant acknowledged with his signature that there was no change in his medical condition.  Thus, the evidence of record does not support the applicant’s contention regarding his poor mental and physical state at the time of his discharge.

3.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

4.  In order to justify 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)                                         AR20090011245



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ABCMR Record of Proceedings (cont)                                         AR20090011245



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