BOARD DATE:	  February 23, 2010

		DOCKET NUMBER:  AR20090015414 


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 undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he was childish and unable to make rational decisions at age 20.  He contends that he was suffering from severe depression following his service in Vietnam, that he was unable to cope with social pressures placed on him, and that he made serious mistakes.  He claims that he has type II diabetes from exposure to Agent Orange and he needs help and compensation from the Department of Veterans Affairs (DVA).  

3.  The applicant states that he thought his discharge was upgraded to a general, under honorable conditions discharge, but the DVA said that unless a discharge review board established under Title 10, U.S. Code, section 1553 upgrades his discharge it does not count and he cannot receive full benefits.

4.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Report of Separation from Active Duty) 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 12 February 1950.  He was inducted into the Army of the United States on 13 August 1969.  He successfully completed basic combat and advanced individual training (AIT) and he was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He also completed basic airborne training.

3.  On 8 April 1970, in accordance with his plea, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 15 February 1970 to 15 March 1970.  He was sentenced to reduction to the rank/grade of private (PV1)/E-1, forfeiture of $82.00 pay per month for 1 month, and confinement at hard labor for 30 days.  On 9 April 1970, the convening authority approved the sentence but suspended the sentence to confinement for 30 days.

4.  The applicant served in Vietnam from 14 April 1970 to 5 October 1970.

5.  Records show the applicant went AWOL on 4 February 1971 and he returned to military control on 31 March 1971.

6.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the applicant's records contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 23 April 1971 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service with a character of service of under conditions other than honorable and issued an Undesirable Discharge Certificate.  He had served a total of 1 year, 6 months, and 16 days of creditable active service with 84 days of lost time due to AWOL.

7.  On 27 May 1977, the applicant's records were reviewed under the provisions of the Special Discharge Review Program (SDRP) and a general, under honorable conditions discharge was directed following review under the provisions of Public Law 95-126.  On 23 May 1978, the Army Discharge Review Board (ADRB) re-reviewed the applicant's case as required by Public Law
95-126 and affirmed the SDRP discharge upgrade to a general, under honorable conditions discharge. 

8.  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.

9.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he was inducted and he completed basic combat training, AIT, and basic airborne training.
   
2.  A discharge is not upgraded for the purpose of obtaining DVA benefits.

3.  The applicant’s undesirable discharge was upgraded to a general, under honorable conditions discharge as a result of the SDRP review on 23 May 1977.  On 23 May 1978, the general, under honorable conditions discharge was affirmed as required by Public Law 95-126.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

5.  Based on the foregoing, there is no basis for granting the applicant's requested relief.




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)                                         AR20090015414



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ABCMR Record of Proceedings (cont)                                         AR20090015414



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