IN THE CASE OF:	  

		BOARD DATE:	  1 March 2011

		DOCKET NUMBER:  AR20100021301 


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 honorable.   He also requests a change in the reason for his discharge.

2.  The applicant states, in effect, that the state of California determined his discharge was honorable.  He now contends that it should be accordingly changed.  The applicant further states he enlisted at 17 years of age and served his country in the Republic of Vietnam (RVN).  He was taught to fight, shoot, and kill.  He was wounded in the chin and throat by a mortar and survived.  He saw brothers blown apart, smelled and felt the burn of napalm, ate weevil-infested food, worked on graves registration, and then came back to the United States.  He wanted to find relief from the drug addiction he had acquired, but his wife did not care.  He tried, but could not talk to his family.  His chain of command told him to suck it up and take it like a man.  No one offered him any help.

3.  The applicant states he is learning that some of his problems are the result of his service in the RVN.  He suffers from diabetes, hypertension, skin cancer, and shrapnel from his wound.  He still has dreams, but they are not as bad as they were in 1967.

4.  The applicant provides copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); a letter from the National Personnel Records Center, dated 29 June 2006; orders awarding him the Army Commendation Medal, dated 31 October 1967; an application for delayed registration of birth; and his birth certificate, issued on 15 December 2007.

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.  On 18 November 1965, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 76E (Quartermaster Supply Specialist).  He was subsequently assigned duty in the RVN.

3.  The applicant's assignment, duty status, and punishment history shows:

	a.  9th Supply and Transportation Battalion, RVN: 10 December 1966 to
29 November 1967;

	b.  Fort Ord, California: 9 January to 17 February 1968;

	c.  absent without leave (AWOL): 2 to 18 February 1968;

	d.  summary court-martial for being AWOL in February 1968;

	e.  Fort Ord, California: 19 February to 15 April 1968;

	f.  AWOL: 16 April to 5 September 1968;

	g.   Fort Ord, California: 6 September 1968;

	h.  AWOL: 7 to 11 September 1968 and 11 October 1968 to 7 February 1969;

	i.  special court-martial for being AWOL from 11 October 1968 to 7 February 1969;

	j.  confinement 7 February to 28 May 1969;

	k.  Fort Lewis, Washington: 13 June to 6 July 1969; and

	l.  AWOL: 7 July 1969 to 9 February 1973.

4.  On 16 February 1973, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, being AWOL from 7 July 1969 to on or about 9 February 1973.

5.  On 21 February 1973, the applicant consulted with legal counsel and 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 of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

7.  On 28 February 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 6 March 1973, the applicant was discharged accordingly.  He had completed a total of 2 years, 6 months, and 16 days of creditable active duty service and had 660 days of time lost due to being AWOL and in confinement.

8.  Item 11c (Reason and Authority) of the applicant's DD Form 214 indicates he was discharged for the good of the service.  Item 13a (character of Service) indicates he was discharged under other than honorable conditions.

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


10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  An undesirable discharge was normally considered appropriate at that time.

11.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  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.

13.  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.

14.  The Delayed Registration of Birth, issued by the State of California, as provided by the applicant, indicates that the applicant had submitted as evidence his "Honorable Discharge, U.S. Army."

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to honorable because the state of California referred to his discharge as being honorable.  Furthermore, he contends that the reason for his discharge should be changed, but did not specify how he wanted it changed.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on his repeated and lengthy periods of AWOL, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The reason and authority, as shown on the applicant's DD Form 214, are correct and appropriately represent the circumstances surrounding his discharge.

5.  The Delayed Registration of Birth issued by the State of California indicates that the applicant had submitted an Honorable Discharge Document in support of the state's issuance of the birth record.  However, it is most likely that the individual receiving the document simply misread the characterization of service.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100021301



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ABCMR Record of Proceedings (cont)                                         AR20100021301



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