BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100011457 


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 discharge be upgraded.

2.  The applicant states he served two tours in Vietnam, serving in Cambodia and Vietnam.

3.  The applicant provides a letter authored by his attending physician which is addressed to his Representative in Congress.

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 28 July 1967.  He completed initial entry training and was awarded military occupational specialty 63B (Wheel Vehicle Mechanic).  He served in the Republic of Vietnam (RVN) from 
18 December 1967 to 17 December 1968.  On 3 February 1970, he reenlisted for 3 years.

3.  He arrived in the RVN for a second tour of duty on 12 April 1970.

4.  He accepted nonjudicial punishment on 18 August 1970 for being derelict in the performance of his duties by negligently failing to stay awake as it was his duty to do so.

5.  He departed the RVN on 11 April 1971 and was reassigned to Fort Hood, Texas.

6.  An FH Form 943 (AWOL (Absent without Leave) Returnee Information Sheet), dated 22 April 1974, shows he was in an AWOL status from 29 April 1971 to 18 January 1972 and from 22 January 1972 to 15 April 1974.

7.  A Disposition Form, dated 24 April 1974, shows he underwent physical and mental examinations which failed to reveal any defects that would have contributed to his misconduct.  He was found physically and mentally fit for duty and was also found responsible for his acts and able to understand and participate in board proceedings.

8.  On 19 June 1974, court-martial charges were preferred against him for AWOL.

9.  He consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

10.  On 8 July 1974, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with the issuance of an Undesirable Discharge Certificate.  On 18 July 1974, he was discharged accordingly.  He completed 4 years of creditable active military service and had accrued 1,078 days of lost time.

11.  The Army Discharge Review Board denied his requests for a discharge upgrade on 22 July 1975 and 23 November 1979.

12.  The applicant provides a letter from his attending physician stating that he is suffering from a medical condition and supports an upgrade of his discharge based on his two tours of duty in the RVN and the illness he was suffering at the time.

13.  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 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.

14.  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.

15.  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's contention that his undesirable discharge should be upgraded has been carefully considered.  While his health issues are indeed unfortunate, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The evidence of record confirms that he was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The record shows that after consulting with defense counsel, he voluntarily requested discharge from the Army to avoid trial by court-martial.

3.  His voluntary 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 administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  His record of indiscipline includes punishment under the UCMJ and 1,078 days of lost time due to being AWOL.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general discharge.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100011457



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011457



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1