IN THE CASE OF:	

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090012330 


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 a general discharge.

2.  The applicant states that he served honorably in the Army from April 1969 to his separation in June 1971.  He had attained the rank of specialist five.  Because of family problems, he reenlisted in the Army based on a promise to be sent back to the Republic of Vietnam.  The promise was not kept.  Things went downhill from there.  He was absent without leave (AWOL) twice.  He was told that since he was a noncommissioned officer, he would receive a general discharge.  At the time he was only 19 years of age and was not in the best frame of mind.  Since his discharge he has not been able to adjust.  He has spent time alone in caves along the Ohio River.  He still has dreams about things that happened in the Republic of Vietnam.  He sees and talks to people who are not there.  The counselor at the Department of Veterans Affairs (VA) has helped him but he still does not trust anyone.  He is asking that his discharge be upgraded so that he may continue to receive medical treatment and compensation for service-connected post traumatic stress disorder (PTSD).  He also believes that his diabetes is related to Agent Orange.

3.  The applicant provides no additional documentation 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.  On 1 April 1969, the applicant, at 17 years and 7 months of age, enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 63B (Wheel Vehicle Repairman).

3.  On 25 August 1969, the applicant was assigned to Europe where he performed duty as a wheel vehicle mechanic with the 110th Aviation Company.  On 15 April 1970, he returned to the United States, enroute to the Republic of Vietnam.

4.  On 13 June 1970, the applicant was assigned to A Company, 75th Support Battalion.   On 27 February 1971, the applicant was promoted to specialist five, pay grade E-5.  He remained in the Republic of Vietnam until his return to Fort Bliss, Texas, on 4 June 1971.

5.  On 20 June 1971, the applicant was discharged for the purpose of immediate reenlistment.  On 21 June 1971, he reenlisted for assignment to the Republic of Vietnam.

6.  On 26 June 1972, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for being AWOL during the periods 24 July to 
15 November 1971 and 26 November 1971 to 14 June 1972 (315 days).

7.  On 28 June 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 
8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which could deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received such a discharge.  

9.  On 11 July 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 17 July 1972, the applicant was discharged accordingly.  He had completed a total of 2 years, 5 months, and 8 days of creditable active military service and he had accrued 315 days of time lost due to being AWOL.

10.  On 16 May 1983, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days, is a dishonorable discharge and confinement for 1 year.

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 contends that his discharge should be upgraded so that he can continue to receive VA counseling and receive compensation for service connected PTSD.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's implying that he was young at the time is not sufficiently mitigating to warrant relief.  The available evidence shows the applicant had satisfactory completed training and had served satisfactorily in Europe and the Republic of Vietnam.  He was promoted to pay grade E-5 and reenlisted prior to any negative incidents.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

4.  The applicant's desire to obtain veterans medical benefits is not justification for the upgrade of his discharge.

5.  The applicant’s lengthy period of AWOL (315 days) rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

6.  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)                                         AR20090012330



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ABCMR Record of Proceedings (cont)                                         AR20090012330



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