IN THE CASE OF:	 

		BOARD DATE:	  08 June 2010

		DOCKET NUMBER:  AR20090021175 


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, in effect, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that when he got out of the hospital in Vietnam, he applied for and he was granted leave to go home.  However, when he got home he was hospitalized for hepatitis he had gotten while on patrol in Vietnam.  He was told he got hepatitis from either bad water or the needles used in his treatment.

3.  The applicant continues that his being stationed in Vietnam caused his mother stress, which accelerated her multiple sclerosis (MS), so he asked for a compassionate reassignment back to the United States.  When that request was disapproved, he decided that he needed to be with his mother, so he went absent without leave (AWOL).

4.  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 military records show that he was inducted into the Army of the United States on 16 March 1970.  He was awarded military occupational specialty 52B (power generation equipment operator/mechanic), he served in Vietnam from 1 September 1970 to 18 February 1971, and he was promoted to pay grade E-3.

3.  On 4 March 1971, the applicant submitted a request for a hardship or dependency discharge.  In that request he stated his mother had MS for the last 16 years and the stress of him being in a combat zone was accelerating the progression of the disease.  In that request he stated that his 45-year old father lived at home with his mother and he was in good health; his 20-year old sister lived in the same state as her parents; and his 17-year old brother lived in the same city as his parents.

4.  On 8 March 1971, the applicant's request for a hardship discharge was disapproved.  In that disapproval it was stated "The circumstances presented are not considered to constitute a hardship greater than that being experienced by other members and families of members of the Armed Forces.  [The applicant's] application does not effectively demonstrate that his presence could be expected to alter the outcome of his mother's illness.  Other members of the family are available and at least equally responsible for the care of [his mother].  If her condition worsens enlisted man will be able to return again on emergency leave." Enclosed with that denial were orders returning the applicant to Vietnam.

5.  On 17 August 1973, court-martial charges were preferred against the applicant for being AWOL from 18 March 1971 to 9 August 1973.

6.  On 20 August 1973, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  In that request he acknowledged that he could be given an undesirable discharge.  The applicant submitted a statement with his request wherein he acknowledged that an undesirable discharge may make him ineligible for many or all Veterans Administration (VA) benefits.

7.  The applicant's request was approved by the appropriate authority.  Accordingly, on 30 August 1973 the applicant was discharged with issuance of an Undesirable Discharge Certificate.  He completed 1 year and 23 days of creditable service and he had 875 days of time lost.

8.  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 VA 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. 

9.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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.  While the applicant submitted a request for a hardship or dependency discharge, that request was disapproved because the applicant's circumstances were not considered to constitute a hardship greater than that being experienced by other members and families of members of the Armed Forces; there was no indication that his presence could be expected to alter the outcome of his 

mother's illness; and other members of the family were available and at least equally responsible for the care of his mother.

2.  That denial would appear to be proper and just.  The applicant's mother had MS for the preceding 16 years and his 45-year old father lived at home with his mother and was in good health; his 20-year old sister lived in the same state as her parents; and his 17-year old brother lived in the same city as his parents.

3.  As such, the applicant was properly ordered back to Vietnam to finish his tour. When he departed AWOL instead of reporting for duty, he was violation of the Uniform Code of Military Justice (UCMJ).

4.  When the applicant was apprehended and returned to military control, he chose to request discharge instead of presenting his case at a trial by court-martial.  He acknowledged at that time that he could be given an undesirable discharge and such a discharge would result in the loss of many or all VA benefits.

5.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

6.  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)                                         AR20090021175



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ABCMR Record of Proceedings (cont)                                         AR20090021175



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