BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110008032 


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 under other than honorable conditions discharge be upgraded to at least a general discharge.

2.  He states:

   a.  during the Vietnam War era, Soldiers were not given mental evaluations nor were counseling programs available to assist Veterans who experienced emotional hardships;  
   
	b.  while he was in Vietnam he served honorably as a combat infantryman, reenlisted, was wounded, and received an Army Commendation Medal for Valor;

   c.  when he was reassigned to Fort Carson, CO he attempted to go to several military schools, which were all denied by his commanding officer; and
   
   d.  as a result, he got into trouble and was told by the Judge Advocate General to comply or get out by going absent without leave, and resign with an undesirable discharge, so he resigned.
   
3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record)
* General orders
* four letters of commendation
* five certificates
* five personal letters
* resume

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 are not available for review.  A fire destroyed approximately 18 million service members' records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.

3.  His available military records show he reenlisted in the Regular Army on 20 May 1971.  

4.  He submitted:

   a.  General Orders Number 602, issued by Headquarters, II Field Force Vietnam, dated 9 March 1971, which show he was awarded the Army Commendation Medal with "V" Device;
   
   b.  page 4 of his DA Form 20 which shows the awards and decorations he received during his period of active duty service; 

	c.  DD Form 214, dated 29 March 1973, which shows in item:

   (1)  11a (Type of Transfer or Discharge) Discharge;

		(2)  11c (Reason and Authority) Army Regulation 635-200, SPN 246, For the Good of the Service;
		(3)  13a (Character of Service) under conditions other than honorable; and 

		(4)  24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) National Defense Service Medal, Vietnam Service Medal with two bronze service stars, Air Medal, Republic of Vietnam Campaign Medal with "1960" Device, and the Army Commendation Medal;

		(5)  26a (Non-Pay Periods Time Lost): 

(a)  17 to 22 July 1972 (6 days);
			
(b)  23 to 27 July 1972 (5 days);

(c)  6 September to 14 November 1972 (2 months and 9 days);

(d)  22 to 28 November 1972 (7 days); and  

(e)  8 to 10 December 1972 (3 days).  

   (6)  30 (Remarks) shows he served in Vietnam from 20 May to 
17 November 1971.  
   
   d.  DD Form 215 (Correction to DD Form 214, Armed Forces of the United States Report of Transfer or Discharge), dated 14 June 1973, which shows his DD Form 214, dated 19 May 1971, was corrected to add the Army Commendation Medal with "V" Device;

	e.  four letters of commendation or appreciation for acts while serving as an officer of the law from 21 May 1990 to 30 August 1992; 

   f.  five certificates of training, appreciation, and membership in professional societies from 9 February 1990 to 25 September 2003; 
      
   g.  five personal letters of recommendation stating that he is a good friend and partner in business who has served as a law enforcement officer and fireman who believes in helping others; and
      
   h.  his resume outlining his professional experience from June 1970 to March 2010.

5.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes the aforementioned properly-constituted DD Form 214 that contains the authority and reason for his discharge.  The DD Form 214 he was issued confirms he completed a total of 2 years, 6 months, and 11 days of active service and had
69 days of time lost.  

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

7.  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 Veterans Administration 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.

8.  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.

9.  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.  The applicant's contention that his record should be corrected by upgrading his undesirable discharge to an honorable discharge was carefully considered and determined to lack merit.

2.  His record is void of the specific facts and circumstances surrounding his discharge.  However, it appears he was charged with the commission of offense(s) punishable under the uniform code of military justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge for the good of the service, 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.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's entire military record and letters of support were taken into consideration.  However, they are insufficient to warrant upgrading a properly-issued discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110008032



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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