IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20090014028 


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, upgrade of his undesirable discharge to an honorable discharge.  He also requests a personal hearing if the Board determines it to be warranted.

2.  The applicant states that he is a Vietnam veteran who was awarded the Purple Heart and treated for Post Traumatic Stress Disorder (PTSD).  The system failed to recognize his cry for help while on active duty and no one followed through medically.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a copy of VA Form 21-22a (Appointment of Individual as Claimant's Representative), dated 1 August 2001; and page 3 of his 4-page DA Form 20 (Enlisted Qualification Record), in support of his request.

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's records show he enlisted in the Regular Army (RA) on
30 June 1967 for a period of 3 years and held military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice).   The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  His records show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on 27 November 1967, for being absent without leave (AWOL) from on or about 26 November 1967 to on or about 27 November 1967.  There is no indication of the type of punishment he received.

4.  On 7 March 1968, he pled guilty at a special court-martial to one specification of being AWOL from on or about 2 January 1968 through on or about 22 January 1968.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $68.00 pay for 6 months.  The convening authority approved a lesser sentence and suspended his confinement for 3 months on 11 March 1968.

5.  His records show he served in Vietnam from on or about 25 May 1968 to on or about 2 November 1968.  His records also show he was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Purple Heart, Parachutist Badge, and Combat Infantryman Badge.

6.  On 23 October 1969, he pled guilty at a special court-martial to two specifications of being AWOL from on or about 5 March 1969 to on or about 3 October 1969 and on or about 23 October 1969 to on or about 31 January 1969.  The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $80.00 pay per month for 4 months.  The convening authority approved his sentence on 3 November 1969.

7.  His records show he accepted additional NJP under Article 15 of the UCMJ as follows:

	a.  On 26 February 1970, for being AWOL from on or about 5 January 1970 to on or about 21 January 1970.  His punishment consisted of a forfeiture of $80.00 pay per month for 2 months (suspended for 60 days).

	b.  On 17 August 1970, for absenting himself from his unit on or about 14 August 1970.  His punishment consisted of an oral reprimand, and 14 days of restriction and extra duty.

8.  On 2 September 1970, he departed his unit in an AWOL status and was dropped from the rolls (DFR) of the Army on the same date.  He was subsequently apprehended and returned to military control at Fort Bragg, NC, on 10 June 1971.

9.  On 17 June 1971, the convening authority preferred court-martial charges against him for one specification of being AWOL from on or about 2 September 1970 to on or about 10 June 1971.

10.  On 1 July 1971, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; the maximum permissible punishment authorized under the UCMJ; the possible effects of a request for discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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 trial by court-martial.

11.  In his request for discharge, the applicant acknowledged that he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veteran Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

12.  On 12 and 13 July 1971, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

13.  On 27 July 1971, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 11 August 1971.  His DD Form 214 shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under conditions other than honorable and issued an Undesirable Discharge 

Certificate.  This form further confirms he completed a total of 2 years and
24 days of creditable active military service and had 738 days of lost time.

14.  There is no indication that he applied to Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

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 (emphasis added), 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.

18.  Army Regulation 15-185 governs operations of the Army Board for Military Corrections (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before 

which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded.

2.  With respect to the personal hearing, his request was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board. Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence 
provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

3.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  His character of service is appropriate based on the facts of the case and his discharge accurately reflects his overall record of service.

4.  His combat service in Vietnam and combat awards are noted.  However, there is no evidence in his records that he suffered from any medical condition or that his extensive history of AWOL throughout his military service was caused by a medical condition.  Additionally, there is no evidence in his records and he did not provide any evidence that he addressed his "cry for help" with his chain of command or other available support channels during his active duty service.  Furthermore, evidence of record shows his record of AWOLs began before he was assigned to Vietnam.  

5.  There is no evidence in the available records and the applicant did not provide any documentation to warrant an upgrade of his discharge.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general, under honorable conditions discharge.


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)                                         AR20090014028



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ABCMR Record of Proceedings (cont)                                         AR20090014028



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