BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007003 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states the character of service of his discharge does not reflect his actual record of service in combat situations:

	a.  He states he served his country with honor in Vietnam, put his life on the line whenever called upon, and received several awards for valor.  He also states that he had to wash the blood of his comrades from the helicopters and this deeply affected him.  He adds he did not have any problems in the Army until he left Vietnam and returned to the United States.

   b.  He states his medical records show he suffered from depression; however, he did not know what was happening to him and he was unable to adjust to stateside requirements.  He does not believe the Army adequately helped him readjust.  He thought only of going home to be with his family and living his life in peace.

3.  The applicant provides copies of numerous documents from his military personnel and medical treatment records, which include his enlistment contract, entrance and separation medical examinations, two awards, five nonjudicial punishments, his court-martial orders, and DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).


CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code (USC), section 1552(b) [10 USC 1552], 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 U.S. Army Reserve on 16 September 1970 and enlisted in the Regular Army for a period of 3 years on 23 November 1970.  Upon completion of training he was awarded military occupational specialty (MOS) 67A (Aircraft Maintenance Apprentice).

3.  He arrived in Vietnam on 30 May 1971.  He served in duty MOS 67A while assigned to Company C, 101st Aviation Battalion, 101st Airborne Division (Airmobile), from 10 June 1971 through 30 January 1972:

   a.  On 25 October 1971, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty (guard duty).

   b.  Headquarters, 101st Airborne Division (Airmobile), General Orders Number 868, dated 28 January 1972, awarded the applicant the Air Medal (Second Award) for meritorious achievement while participating in aerial flight in the Republic of Vietnam from 21 July to 17 December 1971.

   c.  Headquarters, 101st Airborne Division (Airmobile), General Orders Number 966, dated 1 February 1972, awarded the applicant the Army Commendation Medal for meritorious service in the Republic of Vietnam from May 1971 to May 1972.

4.  The applicant departed Vietnam on 30 January 1972 and was reassigned to Fort Hood, TX, on 6 March 1972:

	a.  On 22 May 1972, the applicant received NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 10 May to 21 May 1972.  His punishment consisted of reduction to private first class (E-3), a forfeiture of
$75.00 pay for 1 month, and 14 days of extra duty (suspended for 30 days).  On 
5 June 1972, the commander vacated the suspended portion of the punishment.

	b.  On 5 June 1972, the applicant received NJP under Article 15, UCMJ, for being absent from his appointed place of duty on 2 June 1972.  His punishment consisted of reduction to private (E-2) (suspended for 60 days) and a forfeiture of $70.00 pay for 1 month.  On 14 June 1972, the commander vacated the suspended portion of the punishment.

	c.  At a special court-martial in September 1972, the applicant pled guilty to the charge and specification of being AWOL from 4 August to 5 September 1972: 

       (1)   He was found guilty of the charge and specification.

	    (2)  He was sentenced to be confined at hard labor for 56 days and a forfeiture of $85.00 pay for 3 months.

       (3)  On 16 October 1972, the convening authority approved the sentence, except that portion pertaining to confinement was suspended until 27 March 1973, and ordered the sentence executed.

	d.  On 3 January 1973, the applicant received NJP under Article 15, UCMJ, for being AWOL on 29 December 1972.

	e.  On 5 January 1973, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty on
24 December 1972.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration of Term of Service]) that the applicant was AWOL for:

* 11 days from 10 May through 20 May 1972
* 32 days from 4 August through 4 September 1972
* 17 days from 29 September through 15 October 1972
* 29 days from 22 January through 19 February 1973
* 11 days from 22 February through 4 March 1973

6.  A Standard Form (SF) 88 (Report of Medical Examination), dated 22 March 1973, shows the applicant was examined prior to his separation from the Army.  Item 73 (Notes and Significant or Interval History) shows the applicant entered the word "Good" in this item, along with his signature:
	a.  Item 74 (Summary of Defects and Diagnoses) shows the examining physician entered "[item] 59 [Distant Vision], Myopia."

	b.  Item 77 (Examinee) shows the doctor placed a check mark in the block for "Is Qualified For Separation" and he initialed this item.

7.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet).

8.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

9.  The applicant's DD Form 214 shows he was discharged on 25 May 1973 in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, with service characterized as under other than honorable conditions:

   a.  At the time he had completed 2 years, 2 months, and 22 days of net active service.

   b.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show the applicant's periods of AWOL and that he had 100 days lost under 10 USC 972.

10.  There is no evidence in the applicant's military personnel records that show he received any awards for valor or heroism.

11.  The applicant's records contain a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States), dated
18 September 1978.  However, there is no evidence the Army Discharge Review Board acted on his request for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel:

   a.  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 Veterans Administration 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.  

   b.  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.

   c.  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.

13.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because the character of service does not reflect his actual record of service in combat situations.

2.  Absent evidence to the contrary, it is concluded the applicant's administrative separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, was warranted by the nature of his offense; discharge was effected in accordance with applicable law and regulations; and the applicant's rights were protected throughout the separation process.  Thus, the applicant's discharge is presumed proper and equitable.

4.  The applicant's contentions were carefully considered:

   a.  Records show the applicant underwent a medical examination shortly after he returned from his last period of AWOL and prior to his discharge.  The SF 88 fails to show the applicant made any mention of being depressed or that he suffered from depression.  In fact, the applicant indicated he was in good health and the examining medical doctor found the applicant qualified for separation.  There is no evidence that the applicant indicated that he needed help through his chain of command or through any other support channels.
   
   b.  The applicant was awarded the Air Medal (2nd Award) and Army Commendation for his meritorious achievement and service in Vietnam.

   c.  There is no evidence he received any awards for valor or heroism.

   d.  The applicant received NJP on five occasions for various offenses under the UCMJ, four of which occurred after he returned to the United States and one of which occurred while he was in Vietnam.  In addition, he was convicted by a special court-martial and was AWOL for a total of 100 days (i.e., more than 3 months) during the period of service under review.  

5.  Therefore, in view of all of the above, 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)                                         AR20100007003



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Pr