IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100007472 


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 to a general discharge.  He also requests that any decorations he is authorized be added to his separation document.

2.  The applicant states he served in Vietnam and was under enormous emotional stress from this service.

	a.  He states that after being reassigned to Fort Campbell, KY, he did not return from pass and was placed in an absent without leave (AWOL) status.  He adds that he was out-processed from the Army rather than helped for his psychological conditions.

   b.  He takes responsibility for his actions and states that an upgrade of his character of service to under honorable conditions will allow him to receive benefits from the Department of Veterans Affairs (VA) and treatment for post-traumatic stress disorder.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 and entered active duty in the Regular Army for a period of 3 years on 5 February 1971.  Upon completion of training he was awarded military occupational specialty (MOS) 64A (Light Vehicle Driver).  He was subsequently awarded MOS 64C (Motor Transport Operator).

3.  On 25 August 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.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) that he served in Vietnam from 18 March 1972 through 12 August 1972;

	b.  item 38 (Record of Assignments) that he was assigned to:

		(1)  the U.S. Army Depot Long Binh from 24 March through 24 June 1972 and

		(2)  the 446th Transportation Company from 25 June 1972 through 10 August 1972; and

	c.  item 39 (Campaigns) that he served in Vietnam during an [as then] unnamed campaign.

5.  The applicant departed Vietnam on 11 August 1972 and was reassigned to Fort Campbell, KY, on 6 October 1972.

6.  On 6 November 1972, the applicant received NJP under Article 15, UCMJ, for being AWOL from 18 September 1972 to 30 September 1972 and for being AWOL from 10 to 11 October 1972.

7.  The applicant was AWOL from 2 January 1973 to 12 March 1973.

8.  On 12 March 1973, the applicant submitted a statement acknowledging that, having been advised that if he is a drug experimenter, drug user, or drug addict, he could request amnesty and rehabilitation.  In addition, if he participated in the Fort Riley Drug Rehabilitation Program he would not be subject to punitive action, including an administrative discharge under other than honorable conditions, solely for drug abuse.  The applicant waived such amnesty and rehabilitation and indicated he did not wish to participate in the program.

9.  On 29 March 1973, charges were preferred against the applicant under Article 86, UCMJ, for being AWOL from 2 January 1973 to on or about 13 March 1973.

10.  On 29 March 1973, the applicant consulted with legal counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was fully advised of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.

	b.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the VA, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	c.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were submitted with his request.

		(1)  The applicant provided a statement that he was requesting discharge because of his attitude toward the Army.  He stated his unit was a "Mickey Mouse outfit" and one of the most disorganized units in the Army.


		(2)  He indicated he had two opportunities outside of the Army to do what he had always planned, including a partnership in farming with a relative or the purchase of a neighbor's farm.  He added that farming is an essential and necessary element of American life.

		(3)  He concluded by stating that if he were reassigned, he would go AWOL again until he was discharged.  There is no indication in his statement that he was experiencing "enormous emotional stress" at the time.

11.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an Undesirable Discharge Certificate.

12.  On 6 April 1973, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  

13.  The applicant's DD Form 214 shows he was discharged on 16 April 1973 in accordance with the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  At the time he had completed 1 year, 11 months, and 11 days of total active service.

   a.  Item 26a (Non-Pay Periods Time Lost) and item 30 (Remarks) show the applicant's periods of AWOL and that he had 91 days lost under Title 10, U.S. Code, section 972.

   b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the Expert Marksmanship Qualification Badge with Rifle Bar (M-16A1), National Defense Service Medal, and Vietnam Service Medal.

14.  There is no evidence in the applicant's military personnel records that shows he received any individual awards for valor or heroism, meritorious achievement, or meritorious service.

15.  The applicant's DD Form 214 shows he was awarded the Vietnam Service Medal.

	a.  Paragraph 2-13 of Army Regulation 600-8-22 (Military Awards) contains the regulatory guidance on the Vietnam Service Medal.  It states that one bronze service star is authorized with this service medal for each Vietnam campaign a member is credited with participating in.

	b.  Table B-1 contains a list of Vietnam Conflict campaigns and it shows that during the applicant's tour in Vietnam participation credit was awarded for the following campaigns:

* Consolidation II (1 December 1971-29 March 1972)
* Vietnam Cease-Fire (30 March 1972-28 January 1973)

16.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) lists the awards received by units serving in Vietnam.  This pamphlet shows that at the time of the applicant's assignment to:

	a.  the 446th Transportation Company, the unit was awarded the Meritorious Unit Commendation by Department of the Army General Orders Number 32, dated 1973, and

	b.  the U.S. Army Depot Long Binh, the unit was awarded the Republic of Vietnam Gallantry Cross with Palm Unit Citation by Department of the Army General Orders Number 8, dated 1974.

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

18.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

19.  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 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.  

	b.  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.

20.  Army Regulation 635-5 (Separation Documents), in effect at the time, prescribed policies and procedures regarding separation documents.  It also established standardized policy for preparing and distributing the DD Form 214.

	a.  Section III (Instructions for Preparation and Distribution of the Armed Forces of the United States Report of Transfer or Discharge) provides guidance on the preparation of the DD Form 214.  All available records will be used as a basis for the preparation of the DD Form 214, including the DA Form 20, DA Form 66 (Officer Qualification Record), and orders.

	b.  The instructions for item 24 state to enter all decorations, service medals, campaign credits, and badges awarded or authorized from item 21 of the DA Form 66 or from item 41 of the DA Form 20, omitting authorities cited therein.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he was not given any help for his psychological conditions when he returned to the Army and to allow him to receive benefits from the VA.  He also contends that his DD Form 214 should be corrected to show all of his authorized decorations.

2.  The applicant's contentions for upgrading his discharge were carefully considered.

	a.  Records show that upon returning to military control from AWOL on 12 March 1973, the applicant was offered the opportunity for rehabilitation for drug abuse.  However, he indicated he did not wish to participate in the rehabilitation program.

	b.  There is no evidence that the applicant indicated he needed help through his chain of command or through any other support channels for psychological problems.  In addition, the applicant provides insufficient evidence in support of his contention that he was under "enormous emotional stress" at the time.

	c.  Records show the applicant had a total of 91 days of lost time.  In addition, in his statement that accompanied his request for discharge, the applicant stated he would go AWOL until he was discharged.

	d.  Thus, the evidence of record does not support the applicant's contentions.

3.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The ABCMR does not upgrade an individual's discharge solely to enhance his or her eligibility for veterans' benefits.  Therefore, in view of the foregoing, there is no basis for granting the applicant's request for upgrade of the character of his discharge.

5.  The evidence of record shows the applicant  qualified for the Vietnam Service Medal with two bronze service stars based on having served in two campaigns during his service in Vietnam.  It also shows that general orders awarded his unit the Meritorious Unit Commendation and Republic of Vietnam Gallantry Cross with Palm Unit Citation.  Therefore, it would be appropriate to correct his DD Form 214 to show these awards.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ___X____  ____X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal and

	b.  adding to item 24 of his DD Form 214 the Vietnam Service Medal with two bronze service stars, Meritorious Unit Commendation, and Republic of Vietnam Gallantry Cross with Palm Unit Citation.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the character of service of his discharge.  



      _________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)                                         AR20100007472



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ABCMR Record of Proceedings (cont)                                         AR20100007472



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