BOARD DATE:	15 July 2010  

		DOCKET NUMBER:  AR20090021804 


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, in effect, requests that his undesirable discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that the pre-discharge activities he underwent at Fort Carson, Colorado did not include any counseling or examination or evaluation of his emotional, mental or physical condition which he believes was significantly and negatively altered as a result of his exposure to traumatic battlefield conditions and exposure to Agent Orange during his tour of duty in the Republic of Vietnam.

3.  The applicant also states that rather than dodging the draft, he enlisted and served his country honorably and professionally while in harm's way as is reflected in his conduct and efficiency ratings during his tour of duty in the Republic of Vietnam and the first two months of his assignment to Fort Carson.  He contends that if he'd received adequate counseling, examination, and evaluation at Fort Carson, he would not have fallen into the abyss of unacceptable behavior that resulted in an unjustly executed undesirable discharge.  

4.  The applicant notes that he was not eligible for consideration under the Special Discharge Review Program due to the fact the date of his discharge (3 April 1973) was beyond the window of consideration which was from 4 August 1964 through 28 March 1973.  He concludes that favorable consideration of his request in recognition of his honorable service in the Republic of Vietnam and the removal of all references to an undesirable discharge will allow him to believe that justice has been rendered on his behalf.

5.  The applicant provides copies of:

* a DA Form 20  (Enlisted Qualification Record)
* a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* a DD Form 258A (Undesirable Discharge Certificate)
* a DD Form 2072 (Department of Defense (DoD) Special Discharge Review Program Form Letter)

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 record shows he enlisted in the Regular Army on 2 April 1971.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 64C (Motor Transport Operator).  He served in the Republic of Vietnam from 18 September 1971 to 6 April 1972.  He received conduct and efficiency ratings of either "Excellent" or "Good" for the period 29 April 1972 through 16 October 1972.  The highest rank/pay grade he attained while serving on active duty was specialist four/E-4.  However, at the time of his discharge, he held the rank/pay grade of private/E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on four occasions.  The offenses and the dates on which the Article 15s were imposed are as follows:

* 13 May 1971 and 6 September 1972, for absenting himself from his unit without authority
* 21 August 1972, for failing to go to his appointed place of duty
* 21 September 1972, for misconduct

4.  A DD Form 458 (Charge Sheet), dated 8 February 1973, shows the applicant was charged with one specification of violation of Article 86 of the UCMJ and his chain of command recommended he be tried by a special court-martial empowered to adjudge a bad conduct discharge.  The specification was for absenting himself from his unit without authority from 17 October 1972 until 7 February 1973.

5.  The applicant's record contains a Standard Form 93 (Report of Medical History) and a Standard Form 88 (Report of Medical Examination) showing he underwent a pre-separation medical examination on 12 February 1973.  This examination revealed that at the time he did not have, nor had he previously had, any physical, psychological, or psychiatric maladies.

6.  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 undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  The applicant's chain of command recommended approval of his request and the issuance of a DD Form 258A.

8.  On 2 March 1973, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest grade and issued a DD Form 258A.  

9.  On 3 April 1973, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued a  DD Form 258A.  He had completed 1 year, 7 months, and 14 days of creditable active military service.  He also was credited with lost time during the following periods:

* from 22 to 28 August 1972
* from 7 to 28 September 1972
* from 17 October 1972 to 6 February 1973

10.  The applicant provides a copy of the DD Form 258A issued to him at the time of his separation which shows he was discharged from the U.S. Army on 3 April 1973 as undesirable.

11.  The applicant provides a copy of a DD Form 2072, dated 7 October 1977, wherein the Commander of the DoD, Joint Service Liaison Facility, Discharge Review Program (Special) informed the applicant he was not eligible to be considered under their special program due to the fact the date of his discharge was beyond the window of consideration, which was from 4 August 1964 through 28 March 1973.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.

13.  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.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge under other than honorable conditions should be upgraded to an honorable discharge was carefully considered and determined to be without merit.

2.  The applicant's allegation that the pre-discharge activities he underwent at Fort Carson did not include any counseling or examination or evaluation of his emotional, mental or physical condition is unsubstantiated.  Evidence clearly shows he consulted counsel and underwent a complete medical examination as part of his pre-separation processing.

3.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on four occasions.

4.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  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.  Based on his record of indiscipline, the applicant's service prior to the offense is not sufficient to mitigate the misconduct that led to his final discharge.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or a general characterization of service.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this 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)                                         AR20090021804





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021804



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1