BOARD DATE:	  25 August 2011

		DOCKET NUMBER:  AR20110003936 


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 general.

2.  The applicant states he believes his discharge should be upgraded because he served honorably in the Republic of Vietnam (RVN) where he was wounded in action.  He left the RVN early due to his father's automobile accident.  Afterwards, he wanted to return to the RVN but was denied.  Instead, he was put on kitchen police (KP) and used as a dummy until his discharge.  He contends that he only had a 10th grade education and his reading and comprehension were not very good.  He believes that had he been permitted to return to the RVN he would have returned and been honorably discharged.  Now, he is in desperate need of medical assistance and would like to make use of the Department of Veterans Affairs (VA) medical benefits.

3.  The applicant provides no additional documentation.

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.  On 28 April 1969, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty (MOS) 16F (Light Artillery Crewman).

3.  On 29 August 1969, the applicant departed Fort Sill, Oklahoma, for duty in the RVN.

4.  On 9 October 1969, the applicant accepted nonjudicial punishment (NJP) at Fort Lewis, Washington, for being absent without leave (AWOL) from on or about 29 September to 8 October 1969.

5.  On 20 October 1969, the applicant was assigned to the 4th Battalion, 60th Artillery Regiment, located in the RVN.

	a.  On 2 February 1970, he accepted NJP for being drunk on duty.

	b.  On 19 July 1970, he departed the RVN and returned to Fort Sill.

6.  While assigned at Fort Sill, the applicant accepted the following NJP's:

	a.  9 September 1970: for AWOL from 31 August to 1 September 1970; and

	b.  19 October 1970: for AWOL from 17 to 18 October 1970.

7.  On 15 March 1973, charges were preferred under the Uniform Code of Military Justice for AWOL, from on or about 2 June 1971 to 8 March 1973.

8.  On 20 March 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

10.  On 4 April 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued DD Form 258A (Undesirable Discharge Certificate).  On 4 April 1973, the applicant was discharged accordingly.  He had completed 1 year, 9 months, and 15 days of creditable active duty service and had 783 days of time lost.

11.  On 15 July 1979, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

12.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

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.  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 contends that his undesirable discharge should be upgraded to general because he served honorably in the RVN, was wounded, and would have been honorably discharged had he been permitted to return to the RVN.  He also contends that he is in need of medical assistance.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His misconduct and lengthy period of lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's desire to obtain medical benefits is not a justifiable basis for an upgrade of his discharge.

5.  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)                                         AR20110003936





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ABCMR Record of Proceedings (cont)                                         AR20110003936



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