IN THE CASE OF:	  

		BOARD DATE:	  29 April 2010

		DOCKET NUMBER:  AR20090018293 


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 to a general discharge under honorable conditions.

2.  The applicant states that he believes his discharge to be unjust.  Many veterans were given discharges worse than his and they were evidentially overturned.  These same veterans are now receiving full benefits.  The applicant also states that many veterans who are unable to deal with military service are now receiving general discharges.

3.  He contends that he served approximately 24 to 30 months of good service in the United States Army with a tour in the Republic of Vietnam where he earned the Bronze Star Medal, the Air Medal and other medals.  The current characterization of his discharge is preventing him from obtaining medical treatment from the Department of Veterans Affairs.

4.  The applicant provides no additional documentary evidence in support of this case.

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, have 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 enlisted in the Regular Army (RA) on 16 December 1968 and was trained in and awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 31 (Foreign Service) he served in the Republic of Vietnam (RVN) during the period 
9 June 1969 through 9 June 1970.  

4.  The applicant's records show:

* Three counts of nonjudicial punishment under Article 15 for being absent without leave (AWOL)
* The applicant appealed his punishments and his appeal was denied by his superior commander 
* A summary court-martial for failure to report to the correctional custody facility at the proper prescribed time
* Subsequent to the court martial the applicant went  AWOL and was dropped from the rolls as a deserter

5.  The specific facts and circumstances surrounding the applicant's active duty discharge processing are not available for review.  The evidence includes a properly-constituted DD Form 214 (Certificate for Release or Discharge from Active Duty) that contains "Chapter 10," and copy of Headquarters, U.S. Army Training Center, Infantry and Fort Dix, Fort Dix, New Jersey, Special Orders Number 017, dated 17 January 1973, which contain instructions for the applicant to be separated from military service with a reporting date of 
23 January 1973.   

6.  The DD Form 214 shows the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations) on 23 January 1973.  He had completed a total of 3 years, 3 months, and 3 days of creditable active service with 316 days of lost time.



7.  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, the 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 to an individual who was discharged for the good of the Service.  

8.  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 his discharge should be upgraded was carefully considered and it was determined that it is not supported by the evidence in this case.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  In the absence of evidence to the contrary it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  Based on his record of indiscipline, which includes 316 days of time lost due to being AWOL and in confinement, three counts of nonjudicial punishment, and a summary court-martial, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general 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)                                         AR20090018293



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ABCMR Record of Proceedings (cont)                                         AR20090018293



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