IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100010041 


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 undesirable discharge to an honorable discharge.

2.  The applicant states he would like to get his discharge changed to honorable so he can receive Department of Veterans Affairs (VA) benefits.  He adds he has a prior honorable discharge; however, he reenlisted and things didn't go well when he returned from his second tour in Vietnam.

3.  The applicant does not provide any additional documents.

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 military records show that he enlisted in the Regular Army on 21 February 1966.  He was awarded military occupational specialty (MOS) 36G (central office repairman), he served in Vietnam from 2 August 1967 to
1 August 1968, and he was advanced to the rank/grade of specialist four (SP4)/E-4.  During that enlistment he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ on two separate occasions, once for being absent without leave (AWOL) for 2 days; and once for wrongfully throwing beer bottles from the third floor window to the sidewalk, disobeying a lawful order, and disobeying a lawful post regulation.

3.  He was honorably released from active duty on (REFRAD) 20 February 1969 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining Reserve obligation.

4.  On 28 April 1970, the applicant enlisted in the Regular Army as a prior service member.  On 26 June 1970, he was discharged for the purpose of immediate reenlistment.

5.  The applicant departed AWOL on 26 September 1971.  He was subsequently apprehended by civilian authorities for armed robbery.

6.  On 24 February 1972, court-martial charges were preferred against the applicant for being AWOL from 26 September 1971 until 22 February 1972.

7.  On 25 February 1972, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  In his request he acknowledged that he could be given an undesirable discharge which may make him ineligible for many or all benefits administered by the VA.

8.  His request was approved by the appropriate separation authority.  Accordingly, on 9 March 1972, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.

9.  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, 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.

10.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant was AWOL for almost 5 months.  Such serious misconduct certainly warranted an undesirable discharge.

2.  While it is understandable that the applicant would now like VA benefits, he acknowledged in his request for discharge that he could be given an undesirable discharge which may make him ineligible for many or all benefits administered by the VA

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veterans benefits should be addressed to the VA.

4.  As such, there is no basis for granting the applicant's properly-issued 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)                                         AR20100010041



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100010041



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1