IN THE CASE OF:	  

		BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007849 


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 upgrade of his discharge.

2.  The applicant states he served his country, but got a bad discharge for making a bad decision.  He served in Vietnam without a discreditable incident.  The punishment did not fit the crime of being absent without leave (AWOL) for 3 weeks.  He signed for the discharge without realizing the consequences to his Department of Veterans Affairs (VA) benefits.  He is a homeless veteran and needs healthcare and housing to get off the streets.  He served successfully but was not being paid like he should have been.

3.  The applicant provides no documentation to substantiate his request.

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 on 20 October 1970.  He completed training as an infantryman and was awarded military occupational specialty (MOS) 11B1O.  On 12 April 1971, he started training as a noncommissioned officer (NCO) candidate in MOS 11B4O at Fort Benning Georgia.  However he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on 21 June and did not complete the program.

3.  He reported to Fort Carson, Colorado on 15 July 1971.  On 9 September 1971, he received NJP under the provisions of Article 15, UCMJ.  Notwithstanding this NJP, he was advanced to private first class (E-3) on          20 October 1971.

4.  On 11 February 1972, he reported to B Troop, 7th Cavalry, 17th Cavalry in Vietnam where he served without incident for 2 1/2 months.  On 26 April 1972, he was transferred to E Company, 20th Infantry where he accepted NJP, on      29 June 1972, for twice failing to go to guard duty and for willful disobedience and, on 19 July 1972, for again failing to go to guard duty.

5.  The applicant returned to the United States on 4 August 1972 and reported to Fort Carson Colorado on 27 September 1972.  There he accepted NJP on 14 December 1972 and 3 January 1973.  On 21 March 1973, a special court-martial convicted him of two more instances of absence from guard duty, willful disobedience, and disrespect to a captain.  He received his sixth NJP on 24 May 1973.

6.  He was AWOL from 2 July to 13 August 1973 (41 days).  When charges were preferred for that offense the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and state laws.

8.  The separation authority approved the request and directed that an under other than honorable conditions discharge be issued.  On 12 October 1973, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  

9.  There is no available evidence that the applicant ever applied to the Army Discharge Review Board.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

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

12. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he served his country, but got a bad discharge for making a bad decision.  He served in Vietnam without a discreditable incident.  The punishment did not fit the crime of being AWOL for 3 weeks.  He signed for the discharge without realizing the consequences to his VA benefits. 

2.  Notwithstanding his assertion that he served a tour of duty in Vietnam without an offense of record, he was only in-country for about 6 months during which he twice received NJP for missing guard duty with an infantry unit in a combat zone.

3.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ and that he could be deprived of many or all of his benefits as a veteran.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

5.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

6.  In view of the foregoing 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)                                         AR20100007849





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)