IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013479 


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 a general discharge.

2.  The applicant states, in effect, that there were underlying reasons behind his decision to go absent without leave (AWOL).  The applicant argues that his diabetes may be attributable to Agent Orange exposure in Vietnam and an upgrade of his discharge is necessary to receive service-connected benefits.

3.  The applicant provides a VA Form 21-4138 (Statement in Support of Claim).

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 record shows he enlisted in the Regular Army on 13 July 1967 for a period of 2 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 13D (Field Artillery Rocket Crewman).

3.  He was discharged on 20 May 1968 for the purpose of immediate reenlistment.  On 21 May 1968, he reenlisted for a period of 3 years and he was reclassified into MOS 64B (Heavy Vehicle Driver).  The applicant served honorably in Vietnam from 1 July 1968 to 2 August 1969.  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E3.

4.  Records show the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the offenses indicated:

	a.  on 7 August 1970, for being AWOL during the period 29 May 1970 to
28 July 1970; 

	b.  on 11 September 1970, for being AWOL during the period 23 August 1970 to 26 August 1970; and

	c.  on 20 October 1970, for being absent without authority from his appointed place of duty on 14 and 15 October 1970 and for willfully disobeying a lawful order of a superior non-commissioned officer on 16 October 1970.

5.  On 27 October 1970, the applicant was reported AWOL.  On 17 February 1971, he surrendered to military authorities at Fort Hood, TX.

6.  On 25 February 1971, charges were preferred against the applicant for being AWOL during the period 27 October 1970 to 17 February 1971.

7.  On 16 March 1971, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge and issuance of an Undesirable Conditions Discharge Certificate, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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 trial by court-martial.

8.  In his request for discharge, he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 22 April 1971, the separation authority approved the applicant's request for discharge and directed that he receive an undesirable discharge.  On 26 May 1971, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued for this period of service confirms he completed 3 years, 4 months, and 19 days of total active service with 172 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  The applicant's provided a VA Form 21-4138 which states:

* he reenlisted to be a truck driver, but upon reassignment to Vietnam, he was instead assigned to the motor pool
* he was a good Soldier, but eventually had conflicts with his supervisor which resulted in him going AWOL
* he went AWOL after his supervisor threatened to recommend his reduction
* Agent Orange exposure during service in Vietnam may have contributed to his diabetes
* his discharge should be upgraded so that he can receive service-connected benefits

12.  There is no evidence in the available records, nor has the applicant provided evidence, that indicates he was guaranteed assignment as a truck driver.

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 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.

14.  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 discharge should be upgraded was carefully considered; however, there is insufficient evidence to support this request.

2.  The applicant's record shows he 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.

3.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service which shows he completed 3 years, 4 months, and 19 days of total active service with 172 days of time lost due to AWOL.

4.  There is no evidence of record verify his claim of conflict with his supervisor.  Based upon the applicant's multiple incidents of nonjudicial punishment and AWOL, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical 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 health care and other benefits should be addressed to the VA.

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)                                         AR20100013479



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ABCMR Record of Proceedings (cont)                                         AR20100013479



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