IN THE CASE OF:	

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021767 


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 an upgrade of his discharge under other than honorable conditions.

2.  The applicant states he cannot receive his veteran's benefits to assist him or his family and this has been a burden on him for many years.  He went into battle for this country in the Republic of Vietnam (RVN) and earned awards for his duty, to include a Purple Heart.  He has turned his life around and he is a productive, responsible, and accountable individual.  This albatross [discharge] cost him a job, because he suffers from post-traumatic stress disorder (PTSD).  He had 40 months of previous honorable service.

3.  The applicant provides the following:

* Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 28 April 2009
* memorandum, dated 20 February 1967, subject:  Unit History Supplement
* DA Form 20 (Enlisted Qualification Record)
* DA Form 2800 (Criminal Investigation Command (CIDC or CID) Report of Investigation), dated 6 November 1969
* DA Form 188 (Extract Copy of Morning Report), dated 22 April 1970
* DD Form 458 (Charge Sheet) signature page, dated 9 June 1970
* statement for chapter 10, dated 11 June 1970
* memorandum, dated 11 June 1970, subject:  Request for Discharge for the Good of the Service

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 records show he enlisted in the Regular Army on 23 August 1965 and was honorably discharged on 6 December 1966 for the purpose of immediate reenlistment on 7 December 1966.  He was trained in and awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).  The highest permanent rank/grade he held was private first class/E-3.  His record shows he arrived in the RVN on or about 28 December 1967.

3.  Headquarters, 2nd Battalion, 60th Infantry, RVN, Special Court-Martial Order Number 50, dated 22 April 1969, shows the applicant was charged with, pled guilty to, and was found guilty of two specifications of being absent without leave (AWOL) for the following periods:

* on or about 12 October 1968 to on or about 17 March 1969
* on or about 20 March 1969 to on or about 9 April 1969

4.  He was sentenced to forfeit $97.00 per month for 6 months, confinement at hard labor for 6 months, and reduction to the grade of private (E-1).  The convening authority approved his sentence and ordered it executed, but the execution of that portion thereof adjudging confinement at hard labor was suspended for 6 months.

5.  Headquarters, 18th Military Police Brigade, RVN, Special Court-Martial Order Number 386, dated 20 November 1969, remitted the unexecuted portion of the sentence to confinement at hard labor for 6 months.

6.  The complete facts and circumstances of his discharge are not available in his military record; however, the applicant provided a copy of his chapter 10 discharge packet.

7.  On 11 June 1970, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or an under other than honorable conditions discharge.  He further acknowledged he understood that if the discharge request were 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 laws.

9.  He elected to submit a statement on his behalf.  Summarily, he contended he was an excellent Soldier and did not have any disciplinary actions during his first assignment in Korea.  At the end of his first assignment he volunteered to go to Vietnam and became a squad leader in a rifle platoon, eventually getting promoted to E-6.  However, after he was wounded things changed.  He was AWOL for 6 months before being apprehended by military authorities.  He was AWOL again 2 days after returning to his unit and was subsequently tried by a special court-martial for these offenses.  After being court-martialed, he went AWOL four more times.  He was finally sent to the Long Binh Stockade and served 4 1/2 months before being reassigned to Fort Hood, TX.  He failed to report at the end of his leave because he could not bring himself to go back.  He was apprehended by the Federal Bureau of Investigation in April 1970 and returned to military control at the Special Processing Detachment (SPD), Fort Ord, CA.  On 7 May 1970, he left the SPD after his request to get married was denied.  On 9 June 1970, he surrendered to military control and requested a discharge because he realized he could not function and did not want to cause further trouble and expense to the Army.

10.  On 1 July 1970, his immediate commander recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.  The immediate commander cited the applicant's special court-martial, his two AWOL's, his past conduct, and his statement as the reason for his discharge.

11.  On 10 July 1970, his senior commander concurred with the commander's recommendation.

12.  On 10 July 1970, the separation authority approved his request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 21 July 1970.

13.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 2 years, 3 months, and 10 days of creditable active service and he had 490 days of lost time.  His DD Form 214 also shows he was awarded the Purple Heart, National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, Armed Forces Expeditionary Medal, Combat Infantryman Badge, and Expert Marksmanship Qualification Badge with Rifle Bar.

14.  The applicant provides the following documents that have not previously been discussed as part of these proceedings:

	a.  a notice of disagreement to the VA's decision to deny his claim for service-connected PTSD;

	b.  the unit history for the 1st Battalion, 23rd Infantry, 2nd Infantry Division;

	c.  a CID report which states the applicant made and passed worthless checks totaling $1476.75 at various facilities of the Vietnam Regional Exchange for cash and merchandise.  He contends he was never charged with this offense;

	d.  a morning report assigning him to the SPD on 20 April 1970; and

	e.  the signature page of a charge sheet which shows charges were brought against him on 9 June 1970.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

16.  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 otherwise so meritorious than any characterization would be clearly in appropriate.

17.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge.

2.  His records show he completed his first enlistment and was honorably discharged on 6 December 1966.  Further, he received the Purple Heart for wounds he sustained in the RVN.  However, his overall record of service shows multiple instances of misconduct.  He was court-martialed while in RVN for being AWOL on two separate occasions.  By his own admission, the applicant was AWOL four additional times while still in RVN and twice upon his return to the United States because he "could not function and did not want to cause further trouble and expense to the Army."  At the time of his discharge he had accumulated 459 days of lost time.  There is no evidence his service in Vietnam led to his misconduct.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to 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.  The applicant provided no information that would indicate the contrary.  Further, the applicant's discharge appears to accurately reflect his overall record of service.

4.  In view of the above, his request should be denied.



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)                                         AR20100021767



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ABCMR Record of Proceedings (cont)                                         AR20100021767



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