IN THE CASE OF:	  

		BOARD DATE:	  1 JULY 2010

		DOCKET NUMBER:  AR20100000008 


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.

2.  The applicant states he was in the Republic of Vietnam (RVN) for a year and now has lung cancer from his exposure to Agent Orange.  He contends he was on standby for a flight out of Da Nang and was a day late getting there.  They stated he was absent without leave (AWOL) and discharged him.  He now needs health care benefits and monetary compensation from the Department of Veterans Affairs (VA) for his Agent Orange exposure in Vietnam.

3.  The applicant provides a self-authored statement, 7 third-party statements of support, and a list of 145 names and signatures of individuals 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's record shows he was inducted into the Army on 27 April 1971. 
He was trained in and awarded military occupational specialty 11B (Light Weapons Infantryman).  He arrived in the RVN on 27 September 1971.

3.  On 14 March 1972, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for the following offenses:

* being absent from his unit without authority from 1 March 1972 through 6 March 1972
* failing to go at the time prescribed to his appointed place of duty on 9 March 1972
* being absent from his place of duty without authority on 9 March 1972

4.  The applicant returned to the United States on 24 April 1972.

5.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows the applicant was AWOL from 19 June 1972 through 28 October 1972.  On 30 October 1972, court-martial charges were preferred against the applicant for AWOL.

6.  On 30 October 1972, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate, that he might be ineligible for many or all benefits administered by the VA, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

7.  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 November 1972, the applicant was discharged accordingly.  He completed 1 year, 2 months, and 11 days of creditable active military service and had accrued 132 days of lost time.

8.  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.

9.  The applicant provides a self-authored statement which states, in part, he is one of thousands who received an undesirable discharge and since then his health has been deteriorating.  He knows he was AWOL and is trying to have it changed.  He further states that his time may come sooner than expected and all he would like to do is to have his discharge changed so his wife can have a better life after he is gone.

10.  The applicant also provided a list of individuals' names and signatures who support his claim for VA benefits and third-party statements that attest to his character and support his discharge upgrade.

11.  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, the 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 to an individual 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.  The applicant's contention that his undesirable discharge should be upgraded has been carefully considered.  While his health issues are indeed unfortunate, these factors are not sufficiently mitigating to support granting the requested relief.  Additionally, the ABCMR does not upgrade discharges solely for making an individual eligible for veterans' benefits.

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
The record shows that after consulting with defense counsel, the applicant voluntarily requested discharge from the Army to avoid trial by court-martial.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  The applicant's record of indiscipline includes punishment under the UCMJ and 132 days of lost time due to being AWOL.  Based on this record of indiscipline, the applicant's service clearly did 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 either an honorable or a general 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)                                         AR20100000008



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)