IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012047 


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 under other than honorable conditions (UOTHC) discharge.  He also requests a personal appearance hearing.

2.  The applicant states:

	a.  He makes no excuses for his actions at the time of his discharge.  He was young and very immature at the time.

	b.  He is requesting a discharge upgrade because he has multiple medical conditions due to his service in Vietnam, is unable to obtain healthcare from the Department of Veterans Affairs (VA), and his employer does not provide health insurance.

3.  The applicant provides two character references and copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and DA Form 20 (Enlisted Qualification Record).  

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 13 March 1970 at age 18.  After completing initial entry training, he was awarded military occupational specialty 12A (Pioneer) and assigned for duty in Vietnam with Company A, 27th Engineer Battalion (Combat).  He reenlisted on 14 November 1970.  

3.  He served in Vietnam from 25 August 1970 through 10 March 1972.  Upon returning to the United States, he was assigned for duty with 2nd Battalion, 63rd Armor, Fort Riley, KS. 

4.  The record shows the applicant was awarded the Army Commendation Medal for meritorious achievement while serving in Vietnam and the Army Good Conduct Medal for the period 13 March 1970 to 12 March 1973. 

5.  Item 44 (Time Lost) of the applicant's DA Form 20 shows he was absent without leave (AWOL) from 1 to 2 May 1972, 1 to 18 June 1973, and 25 July to 
9 October 1973.  The form also shows time lost from 28 August to 12 September 1972 for unspecified reasons under the provisions of Army Regulation 600-10 (The Army Casualty System).  

6.  The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the following offenses:

* 5 May 1972 for absenting himself from his unit without authority from
1 to 3 May 1972
* 11 September 1972 for driving while intoxicated

7.  A DA Form 20B (Insert Sheet to DA Form 20 - Record of Court-Martial Conviction) shows a summary court-martial convicted the applicant of being AWOL from on or about 1 June to on or about 19 June 1973.  He was sentenced to forfeiture of $150 for 1 month, extra duty for 30 days, and reduction to private first class/E-3.

8.  A DD Form 458 (Charge Sheet) shows the applicant was charged with being AWOL from on or about 25 July to on or about 10 October 1973.  

9.  On 16 October 1973, the applicant was informed he was pending trial by court-martial for being AWOL during the period 26 July to 10 October 1973.  The applicant voluntarily requested discharge for the good of the service in lieu of court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  The record shows that prior to submitting his request, the applicant consulted with legal counsel and was advised of his rights under the UCMJ, the elements of the offense with which he had been charged, and the procedures and rights that were available to him.  

10.  The applicant indicated that he understood by requesting discharge he could be discharged with an under other than honorable conditions (UOTHC) discharge and furnished an Undesirable Discharge Certificate.  He further 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 law.  

11.  In a statement provided in support of his request for discharge, the applicant made the following assertion:  "If returned to active duty I will in all probability depart AWOL and continue to do so until the Army realizes that it would be for its and my benefit to discharge me." 

12.  On 21 November 1973, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 28 November 1973, the applicant was discharged accordingly.  His DD Form 214, as amended by a DD Form 215 (Correction to DD Form 214) dated 26 August 1982, shows he completed 3 years, 4 months, and 25 days of total active service with 111 days of time lost.

13.  On 14 September 1982, the Army Discharge Review Board informed the applicant his request to upgrade his discharge was denied.

14.  The character references provided by the applicant cite his loyalty, honesty and trustworthiness and contributions to the community as a businessman.  

15.  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.  

16.  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.

17.  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.

18.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant has requested to personally appear before the ABCMR, there is sufficient evidence available for a fair and impartial consideration of his case without such an appearance.

2.  The evidence of record does not support the applicant's request for upgrade of his discharge.

3.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for benefits.

6.  The applicant's record of service includes two NJPs and conviction by summary court-martial and shows he was charged with an offense punishable under the UCMJ with a punitive discharge.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  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)                                         AR20100012047





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ABCMR Record of Proceedings (cont)                                         AR20100012047



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