IN THE CASE OF:	  

		BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100023116 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.  

2.  He states, in effect, that nearly all Vietnam veterans were disrespected and disowned by the American people, and most reacted badly.  

3.  He provides:

* self-authored statement
* DD Form 214 (Report of Separation from Active Duty)
* two Honorable Discharge Certificates
* UOTHC Discharge Certificate
* three character references
* two Senior Enlisted Evaluation Reports
* two letters of commendation
* two Certificates of Appreciation
* diploma from the U.S. Army Field Artillery Center, Fifth U.S. Army Noncommissioned Officers (NCO) Academy Class 2-72, Fort Sill, OK
* diploma from the U.S. Army Engineer School, Engineer NCO Basic Course
* two Certificates of Achievement
* training certificate
* diploma from the Bomag (USA) Service School



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 enlisted in the Regular Army on 24 May 1967.  He served in Vietnam from 1 March to 24 August 1969 and he was promoted to specialist five during this period.  He was honorably discharged on 29 August 1969 for immediate reenlistment.  

3.  He reenlisted on 30 August 1969.  He also served in Vietnam from 2 June 1970 to 22 April 1971.  He was honorably discharged on 8 June 1972 for immediate reenlistment.  

4.  He reenlisted on 9 June 1972 for a period of 6 years.  He was promoted to staff sergeant on 2 January 1975.  

5.  He provided several letters, certificates, and diplomas commending him for completion of training and job performance.  

6.  He also provided two Senior Enlisted Evaluation Reports for the periods ending November 1975 and June 1976 which show he received evaluation scores of 115 and 116 out of a maximum score of 125.  

7.  On 21 September 1978, charges were preferred against him for being absent without leave (AWOL) from 27 June 1977 to 13 September 1978.

8.  He consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued.  He did not submit statements in his own behalf.  
9.  The separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with a UOTHC discharge.

10.  He was discharged on 10 October 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a UOTHC Discharge Certificate.  He completed 5 years, 1 month, and 15 days of creditable active service during the period under review.  He also had 443 days of lost time.

11.  He provided a self-authored statement in support of his claim.  He stated he:

* had problems with civilian authorities when he enlisted in the Army which resulted in a court-martial for being AWOL 
* served several years and received two honorable discharges
* served his country proudly, received numerous letters of commendations,  and he had excellent evaluations
* was accused of harassment of Soldiers he observed with marijuana while assigned to the 299th Engineer Headquarters Company 
* experienced marital problems due to mental pressures, he was unable to perform his duties, and cope with the pressure 

12.  He provided three character references from his children who described his family values, hard work, and integrity.  

13.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

14.  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.



15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions in regard to Vietnam veterans are acknowledged.  However, the evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the requested relief.

2.  The available evidence shows he served two periods of honorable service.  However, his service record shows he was AWOL for 443 days during the period under review.  

3.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.  

4.  The available evidence shows he received letters of commendation and he had good evaluations.  However, his chain of command determined his period of service under review did not meet the standards for either an honorable or general discharge as defined in Army Regulation 635-200.  His discharge appropriately characterized his service.

5.  The applicant's character references and his personal problems were taken into consideration.  However, they are not sufficiently mitigating to warrant relief in this case.

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)                                         AR20100023116





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ABCMR Record of Proceedings (cont)                                         AR20100023116



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