BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021846 


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 his undesirable discharge be upgraded to honorable.

2.  The applicant states he voluntarily entered the Army, he volunteered for duty in Vietnam, and he was exposed to Agent Orange in Vietnam.  While in Vietnam he enrolled in the 6-month early-out program and when his time came to return to the United States and be discharged his records were lost.  He arrived at Fort Lewis, Washington, and was placed in a holding company.  After spending some time there with no progress on his discharge he was told to go home on a 30-day leave and his honorable discharge would be mailed to his home.  He contends this period is reflected as "lost days" in his records.  When his discharge did not arrive, he was told to report to Fort Devens, Massachusetts, where he was again issued another 30-day leave and told to go home.  He was also told if the discharge did not arrive to return again and continue this process until the records were recovered and his discharge was issued.  After many months of this routine and long past his normal discharge date, he decided he had served his full term (and more) honorably and did not need the piece of paper to prove it.  He stopped reporting monthly and went on with his life and forgot the whole matter.

3.  The applicant states that some years later after having married, settled down to a job and life, he was rounded up in a nationwide sweep of deserters, absentees without leave (AWOL), and draft-dodgers and taken from a jobsite at work and brought to Fort Dix, New Jersey, in chains for trial for desertion.  The military judge said he should fight the charge and could be issued an honorable discharge, but he would have to stay in the military to contest it.  At that point he did not care and just wanted to get back to his civilian life.  He agreed to a plea agreement of accepting an other than honorable conditions discharge.  He was also told he would never be able to receive any veteran's benefits.  Considering the ill treatment he received and his resentment towards the military at that point, he agreed.  He has never sought anything from the government.  Now after all these years, he finds his principles have been influenced by advancing age, declining general health, and a poor economic situation.  He is seeking redress only in the form of being allowed to enroll in the Department of Veterans Affairs (VA) health care system.

4.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) 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 enlisted in the Regular Army on 25 September 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 62F (crane operator).  He served in Vietnam from 1 September 1969 to 14 November 1970.

3.  On 12 January 1971, nonjudicial punishment was imposed against the applicant for being AWOL from 23 December 1970 to 30 January 1971.  His punishment consisted of a reduction to E-2 and extra duty.

4.  The applicant went AWOL on 25 April 1971 and returned to military control on 27 April 1971.  He went AWOL again on 30 April 1971 and returned to military control on 16 June 1975.  On 19 June 1975, charges were preferred against the applicant for the AWOL periods.

5.  On 20 June 1975 after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

6.  On 28  June 1975, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

7.  Accordingly, the applicant was separated with an undesirable discharge on 28 July 1975 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years, 6 months, and 14 days of creditable active service with 1,570 days of lost time.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  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.

10.  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.

11.  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.  A discharge is not upgraded for the purpose of obtaining VA benefits.

2.  The applicant's record of service included one nonjudicial punishment and 1,570 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090021846



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ABCMR Record of Proceedings (cont)                                         AR20090021846



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