IN THE CASE OF:	  

		BOARD DATE:	  28 October 2010

		DOCKET NUMBER:  AR20100013744 


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 an honorable discharge.

2.  He states his discharge was based on one isolated incident during his 29 months of service of a 3-year voluntary enlistment.  The incident occurred after he submitted repeated requests to join his unit that had been sent to Vietnam.

3.  He provides no additional documents in support of this application.

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. His military records show he enlisted in the Regular Army on 12 December 1968 for a period of 3 years.

3.  He was reported absent without leave (AWOL) on 17 April 1970 and dropped from the rolls of his organization on 19 May 1970.  He was returned to military control on 28 February 1971.

4.  A DD Form 458 (Charge Sheet), dated 3 March 1971, shows a special court-martial charge was preferred against him for one specification of AWOL from 17 April 1970 to 1 March 1971.

5.  On 1 April 1971 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further indicated he understood he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.  The applicant did not submit a statement in his own behalf.

6.  A neuropsychiatric report, dated 19 April 1971, shows he was diagnosed with an inadequate personality with depressive features.  The examining psychiatrist stated the applicant was placed on a levy to Vietnam, but was turned back because his brother was serving there at the time.  He arrived at Fort Carson, CO, in July 1969.  On 17 April 1970, he went AWOL and did not return to military control until 1 March 1971.  His family history was significant to his current diagnosis and depression.  The applicant stated he had a great deal of problems with his parents and he had a history of running away from home.  Because his father was very distant and uninvolved with his family, he never had an opportunity to identify with a strong male figure.  The applicant stated he went AWOL because of his inability to understand and tolerate Army discipline.  He attempted suicide in March 1970 and again in April 1971.  The examining psychiatrist recommended the applicant be separated under the provisions of Army Regulation 635-200.  Because the psychiatrist opined the applicant's lack of an adequate adjustment to the Amy was due to an inability rather than an unwillingness to adjust, it was recommended his discharge be under general conditions.

7.  On 22 April 1971, the applicant's company commander recommended approval of his discharge request and the issuance of a General Discharge Certificate.  The company commander stated he had talked with the applicant and his pregnant wife at length.  He also spoke with the applicant's mother via long distance telephone.  The company commander stated he believed the applicant was incapable of adapting to military life and discipline through no fault of his own.  The applicant appeared extremely nervous during interviews or when dealing with his superiors.  The applicant attempted suicide on at least three occasions as an escape reaction.  All rehabilitative and assisting steps taken or initiated by the unit failed to bring about a confident or positive attitude on his part with respect to military service.  The company commander further stated the applicant was very dependent on his wife for psychological support and opined that any separation from her would make him useless as a Soldier.  Because the applicant was ineffective as Soldier, apparently suicidal, and unable to change himself, not unwillingly, he felt the applicant should be granted the separation and issued a General Discharge Certificate.

8.  On 26 April 1971, the applicant's battalion and brigade commanders recommended approval of the request for discharge for the good of the service and recommended the issuance of a General Discharge Certificate.

9.  On 10 May 1971, the appropriate separation authority approved the request for discharge for the good of the service and directed the issuance of a General Discharge Certificate.

10.  On 19 May 1971, the applicant was discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed 1 year, 6 months, and 23 days of creditable active military service with 318 days of lost time due to AWOL.  His DD Form 214 shows his service was characterized as under conditions other than honorable and he was issued a DD Form 258A (Undesirable Discharge Certificate).

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

12.  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, the 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 to an individual who was discharged for the good of the service.

13.  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.  

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.

15.  Army Regulation 635-200, paragraph 3-7c, defines a discharge under other than honorable conditions.  A discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  When authorized, it is issued to a Soldier for misconduct or in lieu of trial by court-martial.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his undesirable discharge upgraded to an honorable discharge was carefully considered.

2.  While his acts of misconduct are not condoned by this Board, the undesirable discharge he received appears to be errorenous.  The evidence clearly shows that in view of his extreme family problems, his entire chain of command recommended that he be discharged and issued a General Discharge Certificate.

3.  The evidence also shows the appropriate separation authority approved the request for discharge for the good of the service and directed the issuance of a General Discharge Certificate.  In spite of this fact, he was issued an Undesirable Discharge Certificate.

4.  The applicant's overall quality of service does not warrant an honorable discharge.  However, the undesirable discharge that he received was contrary to the direction of the separation authority.  Therefore, it would be appropriate to correct his records to show he was separated from the service with a general discharge under honorable conditions on 19 May 1971.  
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X___  ____X___  ___X____  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that:

	a.  all Department of the Army records of the individual concerned be corrected by showing he was separated from the service with a general discharge under honorable conditions on 19 May 1971 and

	b.  the Department of the Army issue him a General Discharge Certificate from the Army of the United States, dated 19 May 1971, in lieu of the Undesirable Discharge Certificate of the same date now held by him.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains upgrading the applicant's discharge to an honorable discharge.



      _____________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)                                         AR20100013744



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ABCMR Record of Proceedings (cont)                                         AR20100013744



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