BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090019105 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he is a Vietnam veteran and is now in need of medical assistance.  He states prior to his being absent without leave (AWOL) he witnessed a grouping of corpses.  He believes his inexperience with such circumstances and his impulsiveness of youth caused him to misjudge the circumstances.

3.  The applicant provides no additional evidence 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 personnel records show he enlisted in the Regular Army on 22 December 1969, at the age of 18, for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 76M (Ammunition Records Clerk).

3.  The applicant was assigned to the 630th Ordnance Company, 184th Ordnance Battalion in the Republic of Vietnam from 11 June 1970 to 
28 September 1970.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on 

* 9 September 1970 for absence from his appointed place of duty
* 19 September 1970 for two specifications of absence from his appointed place of duty and being AWOL from 17-18 September 1970
* 30 September 1970 for three specifications of failure to go to his appointed place of duty

5.  The applicant was assigned to Headquarters and Headquarters Company, 184th Ordnance Battalion in the Republic of Vietnam on 29 September 1970.

6.  On 10 October 1970, the applicant accepted NJP under Article 15, UCMJ for disobedience of a lawful general order and being AWOL from on or about 
30 September to on or about 6 October 1970.

7.  On 17 October 1970, the applicant's commander notified him that he was being recommended for separation from the service for unfitness with an undesirable discharge under the provisions of Army Regulation 635-212 (Personnel Separations, Discharge, Unfitness and Unsuitability).  The commander advised the applicant of his right to:

* present his case before a board of officers
* submit any statement in his behalf
* be represented by military counsel appointed by the convening authority, military counsel of his own choice provided the requested counsel is reasonably available, or civilian counsel at his own expense
* waive the above rights in writing

8.  On 6 November 1970, the applicant's commander recommended him for an undesirable discharge by reason of unfitness under the provisions of Army Regulation 635-212 for frequent incidents of a discreditable nature.  The commander further recommended a waiver of any reassignment or transfer as a rehabilitative attempt.
9.  On 12 November 1970, the applicant accepted NJP under Article 15, UCMJ for absence from his appointed place of duty, failure to obey a lawful general regulation, and escape from the Military Police.

10.  On 11 November 1970, the applicant was examined by a captain in the Medical Corps, a psychiatrist at the 67th Evacuation Hospital in the Republic of Vietnam.  The examiner stated the applicant was a very immature individual with very little insight into his problems.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible; able to distinguish right from wrong and adhere to the right; and had the mental capacity to understand and participate in board proceedings.  The examiner recommended the applicant be separated under the provisions of Army Regulation 635-212.

11.  On 13 November 1970, the applicant submitted a statement acknowledging that he had been advised by counsel of the basis for the contemplated action against him under the provisions of Army Regulation 635-212 for unfitness.  The applicant:

* waived consideration by a board of officers 
* waived a personal appearance before a board of officers  
* stated that he was not submitting statements in his own behalf 
* waived counsel

12.  The applicant acknowledged that, as the result of issuance of an undesirable discharge, he may expect to encounter substantial prejudice in civilian life.  The applicant further acknowledged that, as the result of issuance of an undesirable discharge, he may be ineligible for many or all benefits as a veteran under both federal and state laws and that he may expect to encounter substantial prejudice in civilian life.  

13.  On 30 November 1970, the appropriate authority waived rehabilitative transfer, directed the discharge of the applicant under the provisions of Army Regulation 635-212, and directed issuance of an Undesirable Discharge Certificate.

14.  On 4 December 1970, the applicant was discharged under the provisions of Army Regulation 635-212 by reason of unfitness - frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 11 months and 12 days of active service that was characterized as under conditions other than honorable.  He had 17 days of time lost.

15.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 9 May 1973, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

16.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel for unfitness and unsuitability.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation, the regulation provided for the issuance of an undesirable discharge.

17.  Army Regulation 635-200 set forth the general provisions for the separation for enlisted personnel.  It 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 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 contends his undesirable discharge should be upgraded to an honorable discharge because he needs medical assistance.  He contends youth caused him to misjudge his circumstances.

2.  The applicant’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a young age, served in the Republic of Vietnam, and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  Evidence shows the applicant was properly and equitably discharged in accordance with regulations in effect at the time.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

4.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the Department of Veterans Affairs (VA).

5.  In only 11 months of service, the applicant had accepted NJP on five occasions and he had 17 days of time lost.  Therefore, his service was unsatisfactory.  There is insufficient evidence to upgrade his discharge to either an honorable discharge or to a general discharge under honorable conditions

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

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)                                         AR20090019105



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ABCMR Record of Proceedings (cont)                                         AR20090019105



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