IN THE CASE OF:	 

		BOARD DATE:	    4 January 2011

		DOCKET NUMBER:  AR20100016734 


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 that his under other than honorable conditions discharge be upgraded to general under honorable conditions.

2.  The applicant states, in effect, that he has received a letter from the Montgomery Veterans Affairs (VA) Regional Office stating that because of 262 days lost time and the under other than honorable conditions discharge he cannot receive service connected compensation.  The lost time and discharge happened over 36 years ago and now he needs VA medical attention.  He received the (Republic of) Vietnam Campaign Medal and Vietnam Service Medal.  

3.  The applicant provides a typewritten, signed statement stating, in effect, he served his country from 1971 to 1973, then he reenlisted in 1974.  As a result of his actions in 1974, he received the under other than honorable conditions discharge.  He knows what he did was wrong, but it was due to stress from the war and his mother's illness.  He did serve his country and should have some benefits.  He is now suffering from various illnesses.  He has his family to support but is unable to get or hold down a job.

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 1 July 1970, for a period of 3 years.  Records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 67N (UH-1 Helicopter Repairman).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.  He served in the Republic of Vietnam from 3 May 1971 to 12 February 1972.  He received an honorable discharge on 27 July 1972 and reenlisted on 28 July 1972. 

3.  Records show that the applicant accepted nonjudicial punishment on 
17 November 1972, for being absent without leave (AWOL) from his unit from
6 to 10 November 1972. 

4.  On 9 January 1974, charges were preferred against the applicant for being AWOL from 10 April 1973 until 21 December 1973.

5.  On 23 January 1974, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge and issuance of an Undesirable 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.

6.  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
VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 5 March 1974, the appropriate authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.  On 25 March 1974, the applicant was discharged accordingly.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 3 years and 3 days of total active duty service and had 262 days of lost time.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

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 to acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

11.  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.

12.  Public Law 95-126 provided, in pertinent part, that 180 days of continuous unauthorized absence acts as a specific bar to eligibility for VA benefits.  Such absence must have been the basis for discharge under other than honorable conditions.



13.  Title 38 of the Code of Federal Regulations, chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military…service when the following conditions are met:…(2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment."  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his discharge should be upgraded because he served honorably and now needs medical care.

2.  The applicant's record shows he was charged with the commission of an offense 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.  Further, the applicant’s discharge accurately reflects the overall record of service.

3.  Based on the record of misconduct, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or honorable discharge.

4.  Since the applicant would have been eligible for an honorable discharge on 26 July 1972, it appears that the VA is statutorily required to treat him for any conditions that arose during his first period of service.  Eligibility for veterans' benefits does not fall within the purview of the Army, however.  He should contact a local office of the VA to inform them, if necessary, of the applicable statute and request further assistance.

5.  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)                                         AR20100013746



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016734



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1