IN THE CASE OF:	  

		BOARD DATE:	    11 October 2011

		DOCKET NUMBER:  AR20110006389 


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 undesirable discharge (UD) for the purpose of educational, medical, and employment benefits.

2.  He states his discharge was over 38 years ago and much has changed.  He reenlisted in the U.S. Army on 22 July 1970 for duty in Vietnam.  He was later notified that he had to leave Vietnam because his brother was also stationed there.  He tried to explain that he reenlisted for Vietnam, he wanted to serve his country, and he wanted to do it in Vietnam.  He was told to leave Vietnam immediately or he could be court-martialed.  He was transferred to Okinawa.  He was very disappointed in the Army with its decision to remove him from Vietnam and not honor his reenlistment.  He feels that action created extra stress and frustration that led to his discharge under chapter 10.  He was never court-martialed.

3.  He provides:

* 1970 DD Form 4 (Enlistment Contract – Armed Forces of the United States)
* 1970 and 1972 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)
* five character reference letters
* letter from the Army Review Boards Agency


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 show he enlisted in the Regular Army in pay grade E-1 on 28 November 1966 for 3 years.  He completed training and he was awarded military occupational specialty 76A (Supply Clerk).  He was honorably discharged on 28 August 1967 for the purpose of immediate reenlistment.

3.  He reenlisted on 29 August 1967 for 4 years.  He served in Germany from 23 May 1967 through 27 September 1968.  He was honorably discharged on 21 July 1970 for the purpose of immediate reenlistment.

4.  He reenlisted on 22 July 1970 for 6 years.  Item 48 of his DD Form 4 contains the entry "REENL FOR USARPAC" [reenlist for U.S. Army Pacific].  Item 2 of the DA Form 3340 (Request for Regular Army Enlistment/Reenlistment/
Extension and/or Amendment) prepared in connection with this reenlistment action shows he indicated his desire to reenlist for a specific duty location and entered "RVN" [Republic of Vietnam].

5.  He served in Vietnam from on or about 6 September 1970 through 20 November 1970 in military occupational specialty 36K (Field Wireman).  He served in Okinawa from on or about 21 November 1970 through 5 December 1972.

6.  He accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice for the following:

* 17 and 22 January 1970 – failing to go to his appointed place of duty
* 8 November 1971 – leaving his post without being properly relieved
* 27 April 1972 – failing to go to his appointed place of duty
* 9 August 1972 – indebtedness

7.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions (Flag), dated 28 June 1972, shows an initial flagging action was initiated against him for possible court-martial action and states the applicant was under investigation pending discharge.  The next report was due on 28 August 1972 unless the applicant underwent a change is his present status.

8.  A DA Form 268, dated 10 August 1972, shows an interim flagging action was initiated based on his previous flag of 28 July 1972 pending separation under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability).  The applicant received an Article 15 for indebtedness and he was reduced to the rank/pay grade of private first class/E-3. 
The next report was due on 27 November 1972 unless the applicant underwent a change in his present status.

9.  On 23 August 1972, the applicant's unit commander issued a Certificate of Unsuitability for Reenlistment against the applicant.  The unit commander stated the applicant was a substandard Soldier who should be barred from reenlistment. 
The applicant had a record of habitual misconduct as evidenced by three Article 15's and his security clearance was suspended due to excessive indebtedness.  Since the applicant's assignment to that battery he had performed his duties very reluctantly; demonstrated a lackadaisical, shiftless attitude; and could not be trusted to perform the simplest tasks without maximum supervision. 
All counseling sessions with the applicant had been to no avail.  The applicant's conduct and efficiency was unsatisfactory.

10.  On 23 August 1972, the applicant acknowledged receipt of the certificate and elected not to submit a statement.

11.  On 23 August 1972, the appropriate authority approved the Certificate of Unsuitability for Reenlistment.

12.  A DA Form 268 shows a transfer flagging action based on his previous flag of 21 September 1972 stated he was being court-martialed for theft as a result of an investigation.  The applicant requested discharge in lieu of trial by court-martial under the provisions of chapter 10.  The chapter 10 discharge was approved on 27 November 1972.

13.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial in pay grade E-1 on 21 December 1972 under the provisions of Army Regulation 635-200 (Personnel 

Separations – Enlisted Personnel), chapter 10.  His service was characterized as under conditions other than honorable and he was issued a UD Certificate.  He was credited with completion of 2 years and 5 months of net active service during the period under review and no lost time.  He was also credited with 3 years, 7 months, and 24 days of other service.

14.  He provides five letters in support of his application wherein each individual stated the applicant was intelligent, capable, and personable and would be a valuable addition to any organization.

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

16.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10 then in effect stated 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 in lieu of trial by court-martial at any time after the charges were preferred.  A UD was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge were merited by the Soldier's overall record.

17.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge was a separation with honor.  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 inappropriate.

18.  Army Regulation 635-200, paragraph 3-7b, states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UD should be upgraded.

2.  The evidence of record shows his unit commander issued a Certificate of Unsuitability for Reenlistment against the applicant in August 1972.  The unit commander stated that since the applicant's assignment to the battalion, he had 

performed his duties very reluctantly; demonstrated a lackadaisical, shiftless attitude; and could not be trusted to perform the simplest tasks without maximum supervision.  All counseling sessions with the applicant had been to no avail and his conduct and efficiency was unsatisfactory.

3.  The evidence also shows an investigation for theft resulted in court-martial charges.  He requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His request was approved on 27 November 1972.  He was discharged accordingly on 21 December 1972.

4.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.

5.  His record is void of the facts and circumstances which led to his transfer from Vietnam to Okinawa in November 1970.  He has submitted no evidence to substantiate his contention that he was unjustly not allowed to serve in Vietnam.  In any case, the circumstances he described as having led to his departure from Vietnam was no excuse for his later misconduct.  He could have requested transfer back to Vietnam after his brother departed.

6.  His desire to have his UD upgraded to qualify for veterans' benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for benefits administered by the Department of Veterans Affairs or other outside agencies.

7.  In view of the foregoing, there is no basis for granting his 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 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)                                         AR20110006389



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ABCMR Record of Proceedings (cont)                                         AR20110006389



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