IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090019732 


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 to a general under honorable conditions discharge.

2.  The applicant states that his mind was not stable during the time he was absent without leave (AWOL).  While home on leave, he told his mother that he was sick and needed help.  When he closed his eyes at night he could hear the gun shots and explosions.  He had nightmares every night.  He went to the Department of Veterans Affairs (VA) the first week of his leave.  He told them he was depressed and he was having nightmares.  They did not understand his problem and prescribed aspirin.  He wandered around aimlessly.  He knew he should return to his unit, but his mind was telling him not to return.  He began to drink.  His mother told him that he had to report to his unit.  The military police were called.  They came and took him to the stockade.  He never received any help for his problems.  He was told that the time he served in the stockade was his punishment for being AWOL.  He was a model Soldier.  He was proud to serve his country.  His experience in the Republic of Vietnam has damaged his character and changed his life forever.  For that, he is very sorry.  Even now, he still has nightmares and he is medicated most of the time.  Since his service in Vietnam, he has suffered post traumatic stress disorder (PTSD), insomnia, diabetes, sleep disorders, and high blood pressure.

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.  On 20 April 1966, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).

3.  On 8 September 1966, the applicant was assigned to the 611th Ordnance Company located in the Republic of Vietnam.

4.  On 9 March 1968, while in Vietnam, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for reckless operation of a rough terrain fork lift.  The punishment included reduction to pay grade E2 (suspended) and a forfeiture of $25.00 pay per month for 1 month.

5.  On an unknown date, the applicant returned to the United States and he was assigned to the 551st Transportation Corps Detachment, located at Fort Hood, TX.

6.  On 14 February 1969, the applicant was convicted by a special court-martial of AWOL from 15 October 1968 to 30 January 1969.  His sentence consisted of confinement at hard labor for 2 months and a forfeiture of $73.00 pay per month for 2 months.  On 7 March 1969, the unexecuted portion of the punishment to confinement was suspended and the forfeiture was detained.   He was again AWOL on 19 March 1969.

7.  On 10 July 1969, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from 19 March to 7 July 1969.

8.  On 15 July 1969, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible 
punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

9.  After consulting with counsel the applicant submitted a formal request for 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.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

10.  In his request for discharge, the applicant indicated that he understood 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 8 August 1969, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 8 August 1969, the applicant was discharged accordingly.  He had completed a total of 2 years, 7 months, and 10 days of creditable active military service and he had accrued 249 days of time lost due to AWOL and confinement.

12.  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.

13.  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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening 


authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service. 

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

15.  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 contends that his undesirable discharge should be upgraded to a general under honorable conditions discharge because his mind was not stable at the time of his AWOL.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's implied desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, the applicant's request should be denied.


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)                                         AR20090019732



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ABCMR Record of Proceedings (cont)                                         AR20090019732



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