IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100008096 


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 undesirable discharge be upgraded to a general under honorable conditions discharge.

2.  The applicant states, in effect, that his commander told him that his discharge would be upgraded six months after being separated from the military.  The applicant states after returning home from Vietnam his life spiraled out control due to Post-Traumatic Stress Disorder (PTSD) that caused him to separate from reality.  The applicant adds that he was an excellent Soldier up until his return from Vietnam.  The applicant concludes that his health is failing and he needs medical treatment from the Department of Veterans Affairs (VA) for his service-connected disability.

3.  The applicant provides no additional documentation in support of this case.

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 31 March 1970 and successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank the applicant held was specialist four (SP4)/E-4.

3.  The applicant arrived in Vietnam and was assigned to D Company, 2nd Battalion (Airmobile), 8th Cavalry, 3rd Brigade, 1st Cavalry Division on 
5 September 1970.  While serving in Vietnam he was awarded the Combat Infantryman Badge, the Bronze Star Medal for meritorious service, and the Air Medal for meritorious achievement.  He departed Vietnam on 9 September 
1971 and was assigned to A Company, 2nd Battalion, 50th Infantry, 2nd Armored Division, Fort Hood, Texas.

4.  On 17 November 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for the period 29 October 1971 through 15 November 1971.

5.  On 11 February 1972, the applicant accepted NJP under Article 15, UCMJ, for failure to be at his appointed place of duty.

6.  On 17 April 1972, the applicant accepted NJP under Article 15, UCMJ, for being AWOL for the period 4 April 1972 through 15 April 1972.

7.  A DD Form 458 (Charge Sheet), dated 7 February 1974, shows charges were preferred against the applicant for being AWOL during the period 21 June 
1972 through 25 January 1974.

8.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation processing.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 
21 March 1974 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of administrative discharge conduct triable by a court-martial with service characterized as "under other than honorable conditions."  The applicant completed 1 year, 2 months, and 22 days of creditable active service with about 889 days of lost time due to AWOL.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

10.  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.  Although the applicant contends that he was told after six months his discharge would be upgraded, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  In addition, the Board does not grant relief solely for the purpose of obtaining VA benefits.

2.  The applicant's combat service in Vietnam as well as his awards and decorations are acknowledged.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence that the applicant was any more under stress than the thousands of other Soldiers who honorably served in Vietnam or other combat zones under similar or even more stressful situations without having to later go AWOL. 

3.  Discharges under the provisions of chapter 10 of AR 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant's records show that he received three Article 15s and had two instances AWOL one with a lengthy period.  He had completed a total of 1 year, 2 months, and 22 days of creditable active service with about 889 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of an honorable or general discharge.

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)                                         AR20100008096





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)