BOARD DATE:	  20 April 2010

		DOCKET NUMBER:  AR20090017590 


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 (UD) to a general under honorable conditions discharge (GD).

2.  The applicant states he is a combat veteran of the Vietnam War.  He has Type II Diabetes and other service-connected disabilities for which he needs Department of Veterans Affairs (DVA) assistance.

3.  The applicant provides:

* The first page of a multi-page letter, dated 10 November 1970, requesting 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

* A 27 November 1970 partial memorandum of legal review of his request for discharge

* A 27 November 1970 approval of his request for 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.  The applicant was inducted into the Army of the United States on 15 April 1968 for two years.  He was trained in military occupational specialty (MOS) 63B (Wheeled Vehicle Mechanic).  He was transferred to Vietnam, arriving there on or about 1 April 1969.  On 25 September 1969, he was honorably discharged for the purpose of enlistment in the Regular Army (RA) for 3 years.

3.  The applicant's unit in Vietnam listed him in an absent without leave (AWOL) status on 11 November 1969.  He was subsequently dropped from the rolls (DFR) of the Army as a deserter.  Records show his status as:

* 11 November 1969 - AWOL
* 11 December 1969 - DFR
* 18 February 1970 - Returned to military control (RMC) at Fort Hood, TX
* 9 March 1970 - AWOL/DFR
* 14 April 1970 - RMC and placed in confinement

4.  Special court-martial charges were preferred against the applicant for his two periods of AWOL from 11 November 1969 - 17 February 1970 and from 9 March 1970 - 13 April 1970.  On 28 April 1970, he was convicted and sentenced to confinement at hard labor for 4 months and reduction to private (PV1)/E-1.

5.  The applicant was confined at the Correctional Training Facility at Fort Riley, KS from 14 April 1970 through 16 June 1970.  On 17 June 1970, he was released and transferred to Fort Bliss, TX.  On 1 July 1970, he was assigned to Headquarters and Headquarters Battery, 4th Battalion, 62nd Artillery.

6.  The applicant's records show he was absent again as follows:

* 6-31 July 1970 - AWOL
* 1-6 August 1970 - Confined by civil authority
* 13-28 August 1970 - AWOL
* 29 August 1970 - Confined by civil authority
* 3-8 September 1970 - AWOL

* 9-10 September 1970 - Confined by civil authority
* 11 September 1970 - 12 November 1970 - Confined by military authorities
* 18 November 1970 - 7 December 1970 - Confined by military authorities

7.  On 3 November 1970, the applicant's commander preferred court-martial charges against him for his periods of AWOL.  On 10 November 1970, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In so doing, he acknowledged that he was guilty of the charges against him which authorized the imposition of a bad conduct or dishonorable discharge, that he did no desire for further rehabilitation, and that he had no desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.

8.  The applicant submitted a statement in his own behalf.  In it he said he was born in 1948 and his mother died in 1950.  He got married in 1966 to a woman with two girls; they had two sons together.  In 1969, his youngest son was kidnapped and never returned.  He reported to Vietnam on 1 April 1969 and returned to the United States on 10 October 1969 on a reenlistment leave.  He found out about the kidnapping of his son and set out to find him; this caused his first period of AWOL.

9.  The applicant's request for discharge in lieu of trial by court-martial was approved on 27 November 1970.  On 21 December 1970, he was issued a UD.  He had 1 year, 5 months, and 11 days of creditable prior service from his period of induction, and he had 3 months and 21 days of creditable service on his 
3-year RA enlistment.  He had 6 months and 10 days of Vietnam service.

10.  There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.

11.  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.

12.  Army Regulation 635-200 provides guidance on characterization of service and states in paragraph 3-7b that a GD 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 requests an upgrade of his UD to a GD.

2.  The applicant's service record shows a lengthy history of AWOL.  After serving just 6 months in Vietnam, he returned home on a reenlistment leave.  He did not return to his unit and ended up at Fort Hood, TX.  He was court-martialed and punished.  He was not given a punitive discharge; perhaps certain matters were accepted in extenuation and mitigation.  However, the applicant did not learn from this incident because he continued to go AWOL.

3.  The applicant's voluntary 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 administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.  His request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant's behavior did not meet the standards of acceptable conduct and does not warrant a discharge upgrade.

5.  Additionally, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.


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)                                         AR20090017590



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ABCMR Record of Proceedings (cont)                                         AR20090017590



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