IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100021144 


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 (UD) be upgraded to an honorable discharge.

2.  He states he believes his discharge for the period 14 October 1970 to 18 September 1972 should be upgraded because he was going through emotional and mental changes after Vietnam.  He believes this is why he received this type of discharge.  His current Department of Veterans Affairs (VA) record shows his mental and emotional state.

3.  He provides:

* DD Form 214 for the period ending 23 May 1968
* his letter to the VA

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel provides no requests, statements, or additional evidence.

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 military records show he was inducted into the Army of the United States on 24 May 1966 for 2 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The exact dates of his assignment to Vietnam are not shown in his records.  His records contain General Orders Number 364 issued by the 4th Infantry Division on 14 March 1967 awarding him the Purple Heart for wounds received in action in Vietnam on 22 February 1967.

4.  His records also contain Special Orders Number 306 issued by the 4th Infantry Division on 2 November 1967 reassigning him to the Vietnam Return Detachment on 11 November 1967 and to Fort Benning, GA, on 18 November 1967.

5.  He was honorably released from active duty in pay grade E-4 on 23 May 1968 at the expiration of his term of service and transferred to the U.S. Army Reserve Control Group.

6.  He enlisted in the Regular Army after a break in service in pay grade E-4 on 14 October 1970 for 3 years.

7.  He accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for the following:

* 21 May 1971, for failing to go to his appointed place of duty from 3 to 7 May 1971 and on 15 May 1971
* 10 June 1971, for disorderly conduct on 30 May 1971
* 1 July 1971, for failing to go to his appointed place of duty on 19, 20, and 23 June 1971
* 21 August 1971, for failing to go to his appointed place of duty and leaving his appointed place of duty on 14 August 1971
* 24 August 1971, for willfully disobeying a lawful order on 23 August 1971 and failing to go to his appointed place of duty on 25 and 26 August 1971
* 18 October 1971, for absenting himself from his unit from 9 to 14 October 1971
* 3 November 1971, for failing to go to his appointed place of duty on 3 November 1971

8.  He was reported absent without leave (AWOL) on 30 June 1972 and returned to military control on 5 July 1972.  He was again reported AWOL on 28 August 1972.  He was arrested and placed in confinement on 30 August 1972.  He was returned to duty on 13 September 1972.

9.  He was reduced to pay grade E-1 on 15 September 1972.

10.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 18 September 1972 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.  His service was characterized as under other than honorable conditions and he was issued a UD Certificate.  He was credited with 1 year, 7 months, and 16 days of total active service and 109 days of lost time.

11.  He provided a copy of his letter to the VA wherein he requested an upgrade of his discharge.

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

13.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of the regulation stated a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  An UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

15.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded to an honorable discharge.

2.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 18 September 1972 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during this period of service.

4.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20100021144



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100021144



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1