IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110006844 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he had a perfect record before having personal problems.  He made an error in judgment as a youth that he regrets to this day.  It is done and he has tried to live better.  He states he needs medical assistance, a home loan, and burial assistance due to his excellent service prior to his problems and his Vietnam service.  He would like to be buried in the Department of Veterans Affairs (VA) cemetery.

3.  The applicant provides no additional evidence in support of his application.

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 personnel records show he enlisted in the Regular Army and entered active duty on 9 July 1970.  The applicant was nearly 19 years of age at the time he enlisted.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 16F (Artillery Mechanic).   The highest pay grade he achieved was pay grade E-4.

3.  The applicant's record shows that he served in Vietnam for 5 months and 25 days from 9 February 1971 through 2 August 1971.

4.  On 13 January 1972, the applicant was convicted by a special court martial of being absent without leave (AWOL) from on or about 15 August 1971 until on or about 16 December 1971.  He was sentenced to a forfeiture of $192.00 pay per month for 6 months, confinement at hard labor for 3 months, and reduction to pay grade E-1.

5.  On 14 July 1972, court-martial charges were preferred against the applicant for being AWOL from on or about 8 March 1972 until on or about 30 March 1972 and from on or about 31 March 1972 until on or about 12 July 1972.

6.  On 17 July 1972, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated he had not been subjected to coercion and he was aware of the implications attached to his request.  He acknowledged he understood he could be discharged under other than honorable conditions and be issued an Undesirable Discharge Certificate.  As a result of such a discharge, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefit as a veteran under both Federal and State law, and he might expect to encounter substantial prejudice in civilian life.  The applicant record indicated he submitted a statement in his own behalf as enclosure 1; however, the statement is not contained in his military record.

7.  On 19 July 1972, the applicant's unit commander recommended his discharge from and that he receive an Undesirable Discharge Certificate.  It was the unit commander's opinion that the applicant had been a source of agitation since his assignment to Company B on 12 May 1971.

8.  On 27 July 1972, the commanding general approved the applicant's request for discharge for the good of the service and directed his reduction to the lowest enlisted grade and issuance of an Undesirable Discharge Certificate.

9.  On 2 August 1972, the applicant was discharged for the good of the service under the provisions of Army Regulation 635-200, chapter 10, and issued an Undesirable Discharge Certificate.  He completed 1 year, 4 months, and 15 days of net active service and accrued 252 days of lost time due to AWOL and confinement.

10.  On 18 November 1977, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

12.  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.

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's contention that his undesirable discharge should be upgraded because he had a perfect record before having personal problems was carefully considered and found to be without merit.

2.  The applicant was discharged for the good of service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.

3.  Records show the applicant was 19 years of age at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of establishing eligibility for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  The granting of veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for VA benefits should be addressed to the VA.

5.  In view of the above, 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)                                         AR20110006844



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ABCMR Record of Proceedings (cont)                                         AR20110006844



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