IN THE CASE OF:	  

		BOARD DATE:	  29 March 2011

		DOCKET NUMBER:  AR20100023908 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he requested help for an addiction that began in Vietnam and he was refused assistance by the Army; however, he received an undesirable discharge instead.  He further states he is requesting an upgrade in order to obtain Department of Veterans Affairs (VA) healthcare and other benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 29 December 1969 for a period of 3 years.  He completed his basic training at Fort Dix, NJ and he was reassigned to Fort Sam Houston, TX to undergo his advanced individual training (AIT) as an X-ray specialist.

3.  On 14 May 1970, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

4.  He did not complete X-ray specialist training; however, he was further reassigned to Fort Polk, LA to undergo AIT as a personnel specialist.

5.  On 28 October 1970, he was convicted by a summary court-martial of being absent without leave (AWOL) from 3-22 October 1970.

6.  He completed his training and he remained at Fort Polk as an information specialist until he was transferred to Chu Lai, Vietnam on 4 April 1971 for duty as a personnel specialist.

7.  On 13 June 1971, NJP was imposed against him for failing to go at the time prescribed to his appointed place of duty.

8.  On 9 July 1971, after serving only 2 months and 26 days in Vietnam, he went AWOL and he remained absent in desertion until he was returned to military control at Fort Devens, MA on 30 July 1971.

9.  On 7 September 1971, NJP was imposed against him for being AWOL from
9- 31 July 1971.

10.  On 28 September 1971, he went AWOL again and he remained absent in desertion until he was returned to military control at Fort Devens on 23 February 1972, wherein charges were preferred against him.

11.  On 27 February 1972, 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 he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He acknowledged he understood that he 


could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further stated he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or an honorable discharge because the likelihood of that ever occurring was extremely remote.  He elected to submit a statement in his own behalf in which he stated he went AWOL from Vietnam in order to seek rehabilitation for a severe heroin problem and he claimed that he overcame his problem.

12.  The appropriate authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.

13.  Accordingly, on 3 April 1972 he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an undesirable discharge.  He completed 1 year, 11 months, and 19 days of total active service with 171 days of time lost due to AWOL.

14.  On 10 August 1977, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge under the Special Discharge Review Program (SDRP).  On 10 February 1978, the ADRB determined that his discharge was both proper and equitable and voted to deny his request.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided 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 Undesirable 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 is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.  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 voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his repeated misconduct which began well before going to Vietnam, his repeated absences, his undistinguished record of service, and the short period of his service.  His service simply did not rise to the level of under honorable conditions.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

5.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.


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)                                         AR20100023908



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ABCMR Record of Proceedings (cont)                                         AR20100023908



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