IN THE CASE OF:	  

		BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100024032 


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 under other than honorable conditions discharge and correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service in Vietnam and his medals.

2.  The applicant states he returned home from Vietnam for 30 days of leave and had orders to report to Fort Dix, NJ, to be sent to Germany for his next assignment.  He was not in a good frame of mind after his return from Vietnam and asked to stay in the States.  The Army refused so he asked for a discharge.  He volunteered to join the Army so he would not be drafted.  He was told if he volunteered he would not go to Vietnam but as soon as he graduated from advanced individual training he was sent to Vietnam.  He served in Vietnam and after his return he had orders to go to Germany.  He asked for a discharge and received an other than honorable discharge.  He has no misconduct in his files; he needs his discharge upgraded so he can receive medical benefits.

3.  The applicant provides his DD Form 214.

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 are not available to the Board for review.  However, there were sufficient documents remaining in a reconstructed record for the Board to conduct a fair and impartial review of this case. 

3.  The applicant's DD Form 214 shows he enlisted in the Regular Army on 29 April 1971 and held military occupational specialty 94B (Cook).

4.  The specific facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 shows he was discharged on 17 October 1973, in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) paragraph 13-5a (1), for unfitness-frequent incidents of a discreditable nature with civil or military authorities, with issuance of an Undesirable Discharge Certificate, and an under other than honorable conditions characterization of service.  He was reduced to private/E-1 on 6 March 1973.  He completed 1 year, 10 months, and 21 days of total active service with 209 days of lost time due to being absent without leave (AWOL).

5.  His DD Form 214 also shows the following entries:

	a.  Item 12 (Last Duty Assignment and Major Command) shows his last duty assignment as U.S. Army Personnel Control Facility, Fort Riley, KS;

	b.  Item 22c (Foreign and/or Sea Service) shows 0 year, 0 months, and 0 days;

	c.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal; and

	d.  Item 30 (Remarks) shows he was AWOL for the periods 29 - 30 July 1972, 1 - 12 April 1972, 2 - 12 June 1972, 12 December 1972 - 4 January 1973,       12 - 15 February 1973, 26 - 27 February 1973, 16 April 1973 - 30 August 1973, and 2 October 1973 - 17 October 1973.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, paragraph 13-5a, in effect at the time, contains the policy and outlines the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

8.  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.

9.  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 record is void of the specific facts and circumstances surrounding his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 17 October 1973 under the provisions of paragraph 13-5a(1) of Army Regulation 635-200 for unfitness-frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable discharge.

2.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

3.  The available evidence shows a military career marred with misconduct that included eight instances of AWOL and at least one instance of reduction in rank.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general, under honorable conditions or an honorable discharge.  Therefore, he is not entitled to the requested relief.

4.  With respect to his request for correction of his DD Form 214 to show his service in Vietnam and his medals, there is no evidence in the available records and he did not provide any evidence that shows he served in Vietnam, completed any foreign service, or is entitled to any awards other than what is shown on his DD Form 214.  Therefore, he is not entitled to the requested relief.

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

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)                                         AR20100024032





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ABCMR Record of Proceedings (cont)                                         AR20100024032



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