IN THE CASE OF:	  

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090013369 


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 undesirable discharge be upgraded to a general discharge.

2.  The applicant states that while he was in the Army his father killed two people and his little brother died.  He contends that he was depressed, angry, and immature and that he had a difficult time handling these problems.  He believes he did the best he could under the circumstances and he also believes his unit commander should have done more to help him.  He also points out that he is a combat veteran of the Vietnam conflict and he needs help with his Post Traumatic Stress Disorder. 

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge) 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.  The applicant was born on 16 August 1951.  He enlisted in the Regular Army on 8 October 1970 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 76V (equipment storage specialist).  

3.  On 19 April 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 14 April 1971 to 15 April 1971 and destroying Government property.  His punishment consisted of a forfeiture of pay.

4.  The applicant tested positive for opiates on 6 April 1972 and on 14 April 1972.

5.  On 21 April 1972, nonjudicial punishment was imposed against the applicant for being AWOL from 12 April 1972 to 13 April 1972.  His punishment consisted of a forfeiture of pay.

6.  On 18 May 1972, a bar to reenlistment was imposed against the applicant.

7.  On 22 May 1972, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and failure to repair.  His punishment consisted of a forfeiture of pay and restriction.

8.  Records show the applicant went AWOL on 2 June 1972 and returned to military control on 8 June 1972.  He went AWOL on 20 June 1972 and returned to military control on 25 July 1972.  On 26 July 1972, charges were preferred against the applicant for the AWOL period (20 June 1972 to 24 July 1972).  Trial by special court-martial was recommended.

9.  On 29 July 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration 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 encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.   

10.  On 31 July 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 
11.  The applicant was discharged with an undesirable discharge on 
20 September 1972 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 1 year, 8 months, and 27 days of creditable active service with 79 days of lost time. 

12.  The applicant's DD Form 214 shows he was separated from the service on temporary records.  His DD Form 214 also shows he served in Vietnam from 
12 November 1971 through 23 August 1972 and that he had 79 days of lost time.

13.  On 13 February 1980, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

14.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate. 

15.  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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed his training.  

2.  There is no evidence the applicant sought assistance from his chain of command or chaplain in a way to resolve his problems within established Army procedures prior to going AWOL.

3.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

4.  The applicant’s record of service included three nonjudicial punishments, a bar to reenlistment, and 79 days of lost time.  As a result, his record of service was not satisfactory.  Regrettably, the applicant's record of service is insufficiently meritorious to warrant a general discharge.
5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090013369





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013369



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1