BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090018034 


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 under other than honorable conditions discharge be upgraded.  

2.  The applicant states that he was discharged for things after Vietnam.  He states that when he came back to the states he could not adjust to military life just being dropped back into society after coming from a war zone.  He states that he served honorably in Vietnam and thinks that should be taken into account because he risked his life for his country and came back to be treated like he had done something bad.  He states that he was there for a year of his life and that he had Post Traumatic Stress Disorder (PTSD) when he returned from Vietnam. He also states that he needs the upgrade to get benefits.   
   
3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or 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's records show he enlisted in the Regular Army for a period of 
3 years on 6 April 1971.  He completed basic and advanced individual training and was awarded military occupational specialty 94B (Cook).  

3.   On 8 July 1972, the applicant received nonjudicial punishment (NJP) for being absent without leave (AWOL) from his unit and did so remain absent until on or about 1200 hours on 11 July 1972.

4.  On 11 July 1972, the applicant received NJP for disobeying a lawful order issued by the United States Support Element by being present in DaNang City.  

5.  On 31 August 1972, the applicant departed AWOL.  He was apprehended on 13 September 1972, by the Armed Forces Police in the Port Authority New York City and returned to military control at Fort Dix, New Jersey.

6.  On 15 September 1972, the applicant was released to return to his unit.  He failed to return in the time prescribed and was again reported AWOL.  He returned to his unit on 3 October 1972.  While actions were pending for an 
Article 15, the applicant departed AWOL again and was subsequently dropped from the rolls.   

7.  The applicant was apprehended by military police on 2 November 1972 and placed in confinement in the United States Naval Brigade (USNB) Philadelphia, Pennsylvania at 1920 hours.     

8.  A military police report dated 3 November 1972 shows that on 11 October 1972 the applicant was AWOL and subsequently dropped from the rolls.  

9.  On 3 November 1972, the applicant was released from the USNB and   transported and released to the Personnel Confinement Facility, Fort Meade, Maryland for further disposition.

10.  On 13 November 1972, the applicant departed AWOL once again.  On 
14 November 1972, the applicant was dropped from the rolls.

11.  On 20 November 1972, the applicant was apprehended and returned to military control at the U.S. Army Military Police Detachment, Philadelphia, Pennsylvania.

12.  On 27 November 1972, court martial charges were preferred against the applicant.  The acting commander recommended elimination from service and trial by special court martial. 

13.  On 4 December 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under other than honorable conditions, and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that the charges preferred against him under the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making the request of his own free will and had not been subjected to any coercion.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also stated his understanding that if his discharge request 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  The applicant did not submit a statement in his own behalf.  The applicant underwent a separation medical examination prior to his separation.  

14.  On 16 January 1973, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial with a discharge under other than honorable conditions.  He completed 1 year, 7 months, and 11 days of creditable active military service.

15.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

16.  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.  An under other than honorable conditions discharge is normally considered appropriate.


17.  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.

18.  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's contention that he had PTSD when he returned from Vietnam was carefully considered.  There is no evidence and the applicant has not provided any that indicates that he suffered from PTSD.  The applicant also stated that he needed the upgrade to get benefits.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, there must be evidence that show, or it must satisfactorily appear, that the record is in error or unjust.  The applicant failed to submit any evidence that would satisfy this requirement.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  The applicant also acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.




3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The type of discharge he received reflects his misconduct and lost time and rendered his service unsatisfactory.

4.  Therefore, 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)                                         AR20090018034



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ABCMR Record of Proceedings (cont)                                         AR20090018034



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