IN THE CASE OF:	  

		BOARD DATE:	 14 July 2011 

		DOCKET NUMBER:  AR20100030333 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states:

* he served 12 years after his first enlistment and had no problems
* he would like to be recognized for his time in Vietnam
* he served almost 18 years of honorable service after his first enlistment
* he did not have an undesirable discharge during his time in the military
* he had an under other than honorable conditions discharge and that was after coming back from an 11 and 1/2 month tour in Vietnam
* he had three discharges from the Army, two honorable and one under other than honorable discharge
* he joined the Navy and had three honorable discharges
* he was in the Army first and then the Navy
* he joined the Navy after his Vietnam service with an under other than honorable discharge and he served his country honorably after that
* his under other than honorable discharge was for unauthorized absence
* he has diabetes and his Department of Veterans Affairs (VA) benefits have been denied

3.  The applicant provides:

* DD Forms 214 (Report of Transfer or Discharge) for the periods ending 
6 December 1968 and 9 April 1970
* DD Form 214 (Report of Separation from Active Duty)
* U.S. Navy DD Forms 214 (Certificate of Release or Discharge from Active Duty) for the periods ending 2 November 1979, 2 October 1985, and 
17 August 1989
* DD Form 215 (Correction to DD Form 214), dated 22 September 1981  

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.  He enlisted in the Regular Army (RA) on 7 December 1966 for a period of 
2 years.  He completed his training and was awarded military occupational specialty 61B (water craft operator).  He was honorably released from active duty on 6 December 1968.  He enlisted in the RA on 8 September 1969 for a period of 
3 years.  On 9 April 1970, he was honorably discharged for immediate reenlistment.  He reenlisted on 10 April 1970 for a period of 6 years.  He arrived in Vietnam on 16 June 1970.

3.  On 20 January 1971, nonjudicial punishment (NJP) was imposed against the applicant for using disrespectful language toward a superior noncommissioned officer.

4.  On 1 March 1971, NJP was imposed against the applicant for unlawfully striking a specialist four in the left eye with his fist.

5.  On 9 March 1971, NJP was imposed against the applicant for failing to go to his appointed place of duty.

6.  He departed Vietnam on 27 April 1971.

7.  Records show he was absent without leave (AWOL) from 6 June 1971 to 
28 September 1971 and from 12 October 1971 to 8 May 1974.

8.  His record is void of the specific facts and circumstances surrounding his discharge.    

9.  His DD Form 214 for the period ending 3 July 1974 shows:

* he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial
* his character of service as under conditions other than honorable and he was issued an Undesirable Discharge Certificate
* he served a total of 3 years, 11 months, and 5 days of creditable active service with 1,055 days of time lost
* he was awarded the Vietnam Service Medal (VSM) with two bronze service stars and the Republic of Vietnam Campaign Medal with Device (1960) for his service in Vietnam

10.  He enlisted in the U.S. Navy on 9 November 1977.  He remained on active duty through continuous reenlistments until he was honorably discharged on 
17 August 1989 by reason of physical disability (severance pay).

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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.  

13.  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.

14.  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.  He contends he has diabetes and his VA benefits have been denied.  However, a discharge is not changed for the purpose of obtaining VA benefits.

2.  His honorable service in the RA and U.S. Navy was carefully considered.  However, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge during his last enlistment in the RA.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service during his last enlistment in the RA.

3.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100030333





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ABCMR Record of Proceedings (cont)                                         AR20100030333



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