IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021480 


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.

2.  The applicant states he was an excellent Soldier until he was stationed at Fort Carson where he was treated unfairly by his commanding officer for being a "Vietnam veteran."  He states that after returning to base following a motorcycle accident and treatment at a Veterans Administration (VA) hospital he was transferred to Fort Lee, VA.  He returned to Fort Carson upon discharge from Fort Lee.  His next 9 months were made miserable by his commanding officer.  He states he felt helpless and hopeless and left in the summer of 1971.  He further states that he feels he should be eligible for VA benefits.

3.  The applicant provides a copy of his Bronze Star Medal award, a statement from a former Soldier, a statement from his former spouse, and medical documents from the Beckley VA Medical Center.

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 on 23 January 1969.  He completed initial entry training and was awarded the military occupational specialty of combat engineer.  The highest rank/grade he held was specialist four/E-4.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam during the period 23 June 1969 to 22 June 1970.  His records show he was awarded the Bronze Star Medal for meritorious achievement in connection with military operations against a hostile force.

4.  Records show the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without authority on two occasions for a total of 18 days.

5.  The applicant's records show that on 29 May 1973 he was charged with being absent without authority from 13 June 1971 to 15 May 1973 (673 days).

6.  On 13 June 1973, the applicant voluntarily requested a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged that he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and was fully advised of the nature of his rights under the UCMJ at the various possible stages of the proceedings including those of appeal involved in a trial by court-martial.

7.  He further acknowledged he understood that if his discharge request were accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would 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 laws.  He submitted a statement on his own behalf.

8.  On 2 July 1973, the separation authority approved the discharge under provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He directed the applicant be given an Undesirable Discharge Certificate.

9.  The applicant was discharged from active duty on 11 July 1973 with an undesirable discharge.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 2 years, 5 months, and 28 days of net active service.  Item 30 (Remarks) contains the entry, "242 days lost under Title 10, U.S. Code, section 972, prior to normal ETS from 12-23 September 1970, 2-7 December 1970, 13 June 1971-22 January 1972; 478 days lost subsequent to normal ETS from 23 January 1972-14 May 1973."

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, in effect at the time, provided that a member who had committed an offense or offenses the punishment for which included a bad conduct or dishonorable discharge under the UCMJ and the Manual for Courts-Martial could submit a request for discharge for the good of the service.  At the time of the applicant's separation, an Undesirable Discharge Certificate would normally be given to a member who was discharged for the good of the service.

12.  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.  Records show the applicant accepted nonjudicial punishment for being absent without authority on two occasions for a total of 18 days.  He was also charged with being absent without authority for 673 days.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.

3.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a general discharge.

4.  The applicant's entire military record and letters of support were taken into consideration.  However, they are insufficient to warrant upgrading a properly-issued discharge.

5.  The ABCMR does not upgrade properly-issued discharges solely for the purpose of establishing eligibility for other programs or benefits.

6.  There is no evidence of the applicant's commander discriminating against Vietnam veterans.

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)                                         AR20090021480



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ABCMR Record of Proceedings (cont)                                         AR20090021480



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