IN THE CASE OF:	  

		BOARD DATE:	  27 January 2011

		DOCKET NUMBER:  AR20100018510 


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, in effect, that his general discharge under the provisions of the Special Discharge Review Program (SDRP) be upgraded to honorable.

2.  The applicant states:

* He wants his discharge upgraded in order to qualify for Department of Veterans Affairs (VA) benefits
* He was young and immature
* He made youthful mistakes which he regrets 

3.  The applicant provides no evidence in support of his 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.  The applicant was born on 13 February 1951.  He was inducted into the Army of the United States on 9 April 1970.  He completed his training and was awarded military occupational specialty 63B (wheel vehicle repairman).  He arrived in Vietnam on 21 January 1971.

3.  On 18 April 1971, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL).  Records also indicate other acts of indiscipline took place (AWOL, misappropriation of Government property).

4.  On 2 June 1971, charges were preferred against the applicant for being AWOL (two specifications), disobeying three lawful commands, disobeying two lawful orders, and being derelict in the performance of his duties in Vietnam (two specifications).  Trial by special court-martial was recommended.  

5.  On 2 June 1971, after consulting with counsel, the applicant submitted a request for 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.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf; however, his statement is not available.

6.  On 18 June 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

7.  The applicant was transferred to the United States and discharged with an undesirable discharge on 28 June 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 1 year, 2 months, and 20 days of creditable active service.

8.  On 29 August 1973, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge. 

9.  On 2 June 1977, the applicant's records were reviewed under the provisions of the SDRP and a general, under honorable conditions discharge was directed following review under the provisions of Public Law 95-126.  On 27 July 1978, the ADRB re-reviewed the applicant's case as required by Public Law 95-126 and affirmed the SDRP discharge upgrade to a general, under honorable conditions discharge. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he was inducted and he completed his training.
   
2.  A discharge is not upgraded for the purpose of obtaining VA benefits.

3.  The applicant’s undesirable discharge was upgraded to a general, under honorable conditions discharge as a result of the SDRP review on 2 June 1977.  On 27 July 1978, the general, under honorable conditions discharge was affirmed as required by Public Law 95-126.

4.  The applicant’s record of service included at least one NJP and numerous offenses he committed in Vietnam for which special court-martial charges were preferred against him.  As a result, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge.



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)                                         AR20100018510



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ABCMR Record of Proceedings (cont)                                         AR20100018510



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