BOARD DATE:	  4 August 2011

		DOCKET NUMBER:  AR20110002485 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states, in effect, he was drafted in September 1969 and after completing basic training and special training at Fort Hood, TX he was deployed to Vietnam in July 1970.  He served in Vietnam under wartime conditions until he was discharged in 1971.  He believes his discharge was unjust and based on an isolated incident during 22 months of service.  It has been 41 years since he was discharged from the Army and he is age 61.  At the time of discharge he felt he had no recourse but to sign his discharge and leave.  He did not know how it would affect his life.

3.  The applicant provides:

* Self authored statement
* Department of Veterans Affairs (VA) letter, dated 5 January 2011
* DD Form 47 (Record of Induction)
* Medical documents
* DA Form 20 (Enlisted Qualification Record)
* DD Form 214 (Armed Forces of the United States Report of Transfer of Discharge)
* WS Lung Sleep & Critical Care treatment records, dated 11 January 2011




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 was inducted into the Army of the United States on 
9 September 1969 and he held military occupational specialty (MOS) 12B (Combat Engineer).

3.  On 22 May 1971, the applicant underwent a psychiatric evaluation while confined at the U.S. Army Republic of Vietnam stockade.  The applicant stated he had been confined since 19 April 1971 and he was pending a special court-martial due to charges of larceny, resisting arrest, and possession of heroin.  In addition, he admitted to being a heavy user of heroin prior to confinement. 

4.  The psychiatrist found the applicant mentally responsible, able to distinguish right from wrong, and adhere to the right, and he had the mental capacity to understand and participate in board proceedings.  He cleared the applicant for any administrative action deemed appropriated by the commander.  

5.  The record contains a request for discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10, Army Regulation 635-200 (Personnel Separations) with the applicant's name; however, the request is not signed.  The request stated he understood if his discharge request was approved he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  Further, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  

6.  The separation authority approved the request for discharge on an unknown date and directed the applicant be reduced to the lowest enlisted grade and issued an Undesirable Discharge Certificate.  This document is not signed.
7.  On 11 June 1971, the applicant acknowledged with his signature he would be issued an undesirable discharge from the Army of the United States and that he could apply to the Army Discharge Review Board for an upgrade within 15 years.

8.  He was discharged accordingly on 11 June 1971.  He had completed 1 year, 
6 months, and 11 days of total active service with 82 days of lost time.

9.  In a self-authored statement the applicant contends he served 82 days in the stockade for possessing a stolen radio, of which he was unaware it was stolen.  He currently has many illnesses that he knows are attributed to his exposure to Agent Orange while serving in Vietnam.  Also, both his daughter and grandson were born with birth defects and he believes their health problems are due to his Agent Orange exposure.

10.  In addition, he provides a letter from the VA denying his claim for service connected compensation benefits due to the characterization of his discharge and treatment records from WS Lung Sleep & Critical Care.

11.  There is no indication in his records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 

12.  Army Regulation 635-200 (Enlisted Separations) 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, the 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 at the time the applicant was discharged.  

13.  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 requests his discharge be upgraded.

2.  The complete facts and circumstances leading the applicant's discharge are not available but the record shows he was charged with the commission of an offense under the Uniform Code of Military Justice with a punitive discharge.  Although the request for a discharge under chapter 10 in his records is not signed he states in his application to the ABCMR that he felt he had no recourse but to sign and leave the Army.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Absent evidence to the contrary, it appears all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

3.  The applicant contends he was unjustly discharged based on an isolated incident.  However, by his own admission, during his psychiatric evaluation, he stated he was pending a special court-martial due to being charged with larceny, resisting arrest, and possession of heroin.  He further admitted to being a heavy heroin user.  This misconduct renders his service unsatisfactory; therefore, he is not entitled to a general discharge.

4.  In view of the above, his request should be denied.

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)                                         AR20110002485



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ABCMR Record of Proceedings (cont)                                         AR20110002485



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