IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100025577 


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.  He states he believes his discharge is unjust because he served over a year in the United States and over a year in Vietnam.  He also states, in effect, he suffers from post-traumatic stress disorder (PTSD) as a result of his Vietnam service, which justifies upgrade of his discharge.

3.  He provides a self-authored statement and copies of his discharge orders and 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 4 August 1969.  After completing initial entry training, he was awarded military occupational specialty 62B (Construction Equipment Repairer).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

* item 31 (Foreign Service) he served in Vietnam from 19 June 1970 through 24 July 1971
* item 38 (Record of Assignments) he was assigned for duty in Vietnam with the 610th Engineer Company (Combat Support) with principal duty as a heavy equipment maintainer/repairer from 27 June 1970 to 9 September 1971
* item 38 he was dropped from the rolls (DFR) of his unit on 10 September 1971
* item 44 (Time Lost) he was absent without leave (AWOL) from 25 July through 9 September 1971 and DFR from 10 September 1971 through 23 April 1972

4.  The record shows he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for:

* sleeping on his post on 21 July 1970 
* going without authority from his appointed placed of duty on 8 August 1970

5.  On 14 January 1971, he requested a 6-month extension of his tour of duty in Vietnam and a 30-day special leave beginning on 25 June 1971.  His request was approved.

6.  Letter Orders Number 6-39, issued by Headquarters, 35th Engineer Group (Construction), on 10 June 1971, authorized him 30 days of special leave effective on or about 25 June 1971 to visit an address in Waynesville, OH.  

7.  The applicant failed to return from his special leave.  He was returned to military control on 23 April 1972.  As a result, a DD Form 458 (Charge Sheet), dated 4 May 1972, shows he was charged with one specification of being AWOL from on or about 25 July 1971 to on or about 24 April 1972.  

8.  On 18 May 1972, he voluntarily requested 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.  Prior to 


submitting his request, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, the effects of his request for discharge, and the rights available to him.

9.  He acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He acknowledged that as a result of such a discharge he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life by reason of an undesirable discharge.

10.  On 23 May 1972, the separation authority approved his request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 1 June 1972, he was discharged accordingly and his service was characterized as under conditions other than honorable.  He completed 2 years and 28 days of total active service with 274 days of time lost.

11.  His record does not show any significant achievements or acts of valor during his military service.

12.  On 17 June 1974, the Army Discharge Review Board denied his request for a change in the type and nature of his discharge.

13.  In a self-authored statement he states he went AWOL while he was on special leave because he began to experience symptoms of PTSD and still suffers from those symptoms.  He would like his discharge upgraded so he can get help.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  

	b.  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.

	c.  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 evidence of record does not support the applicant's request for upgrade of his discharge to honorable.

2.  The record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  His record of service shows 274 days of time lost due to AWOL and NJP for sleeping on his post while serving in Vietnam.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20100025577



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ABCMR Record of Proceedings (cont)                                         AR20100025577



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