IN THE CASE OF:	  

		BOARD DATE:	 27 April 2010

		DOCKET NUMBER:  AR20090018273 


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, characterized as under conditions other than honorable.

2.  The applicant states he was accused of using drugs and being absent without leave (AWOL).  He agrees he was AWOL for 3 days, but he does not believe his actions were so severe to get the undesirable discharge.  He also states that he served in Vietnam from 13 April 1970 to 26 July 1971 and he is trying to get Department of Veterans Affairs (VA) medical benefits for possible exposure to herbicides.

3.  The applicant provides no additional documentation 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’s military records show he enlisted in the Regular Army for
3 years on 3 October 1969 in pay grade E-1 on 3 October 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 76U (Communications Electronics Materiel Supply Specialist).  He was advanced to pay grade E-4 on 28 July 1970.  Records show he served in Vietnam from 17 April 1970 to 24 July 1971.

3.  On 22 March 1971, he accepted non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 12 and 13 March 1971.  The punishment imposed was a reduction to pay grade E-3 (suspended for 45 days), forfeiture of $40.00 pay, and 14 days of restriction and extra duty.

4.  On 30 April 1971, his unit commander forwarded additional court-martial charges against him which it appeared would not be disposed of under Article 15, UCMJ, or be referenced to a summary court-martial.  The unit commander recommended trial by a bad conduct discharge (BCD) special court-martial.

5.  On 15 May 1971, his acting battalion commander and commanding general recommended trial by a special court-martial with the authority to administer a BCD.

6.  On 21 June 1971, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also understood that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 22 June 1971, his unit commander recommended approval of the applicant's request.  The unit commander stated it was his opinion the charges did not require a punitive discharge.  The offenses charged were of a nature that it was highly 

unlikely that trial and punishment would have any rehabilitative effect in the case.  He recommended issuance of an Undesirable Discharge Certificate.

8.  On 8 July 1971, his battalion commander and the commanding general also recommended approval of his request and recommended the issuance of an undesirable discharge.

9.  On 21 July 1971, the appropriate authority approved his request for discharge for the good of the service and directed issuance of an Undesirable Discharge Certificate and reduction to pay grade E-1.

10.  Accordingly, he was discharged in pay grade E-1 on 27 July 1971, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable.  He was credited with 1 year, 9 months, and 25 days of net active service.

11.  On 27 December 1985, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  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. 

13.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The evidence shows he was punished under Article 15 for failing to go at the time prescribed to his appointed place of duty on 12 and 13 March 1971.  There is no record of AWOL or him being charged with AWOL during his period of service.  On 30 April 1971, his unit commander forwarded additional court-martial charges against him and recommended trial by BCD special court-martial.  After consulting with counsel, he voluntarily requested discharge in lieu of trial by court-martial and waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  His request was approved by his command and it was recommended he be issued an Undesirable Discharge Certificate.  He was discharged accordingly on 27 July 1971.

3.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting either a fully honorable or a general discharge.

4.  In the absence of evidence to the contrary, it appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  The applicant's desire to have his undesirable discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA or any other agency is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA or other agencies.

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of 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)                                         AR20090018273



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ABCMR Record of Proceedings (cont)                                         AR20090018273



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