IN THE CASE OF:	  

		BOARD DATE:	  22 December 2011

		DOCKET NUMBER:  AR20110010216 


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 discharge under other than honorable conditions (UOTHC).

2.  The applicant states:

* he is requesting an upgrade of his discharge because he joined the Army because he loves his country
* he volunteered to serve in Vietnam because he wanted to help his country
* although he was diverted, he asked to go anyway
* while getting ready to go into the bush, a specialist four (SP4) claimed he searched for him all night but could not find him
* he was an 18-year old kid sleeping in an underground bunker where the SP4 claimed to have finally found him
* the SP4 lied because he did not want to take the time to find him
* because the SP4 was senior, the SP4's word was taken over his and this angered him
* he told the SP4 if he lied again, he was going to kill him
* he feels he has paid the price for 40 years for saying something out of anger that he did not mean in the first place – it was a slip of the tongue
* he wanted to be a Special Forces Soldier like his brother, but it didn't quite turn out that way
* he wants his discharge upgraded so he can move forward with his life and maybe have veterans' privileges

3.  He provides a two-page self-authored statement.

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 born on 29 June 1953 and enlisted in the Regular Army on 23 April 1971 at the age of 17 years, 9 months, and 26 days.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 22 November 1971 to 10 May 1972.

4.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice, on two occasions for:

* failing to return from post privileges as directed and remaining absent from 22 to 23 May 1971
* failing to go at the appointed time to his place of duty and absenting himself without authority from 7 to 8 February 1972

5.  His record contains a DD Form 458 (Charge Sheet) that shows charges were preferred against him for being absent without leave (AWOL) from 11 to 12 April 1972 and for wrongfully communicating a threat to injure and kill a Soldier.

6.  On 20 April 1972, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  The applicant acknowledged:

	a.  he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  he did not desire further rehabilitation or desire to continue in the military;

	d.  he understood if his request were accepted he could be issued a UOTHC discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  he understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  he was advised he could submit any statements he desired to accompany his request for discharge; however, he elected not to do so.

7.  On the same date, the applicant underwent a mental health evaluation in which the attending physician stated he had no significant mental illness, he was able to distinguish right and wrong, and had the mental capacity to understand and participate in board proceedings.

8.  On the same date, his commander and immediate commander recommended approval of his request with the issuance of a UOTHC discharge.

9.  On 2 May 1972, the separation authority approved his 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, with issuance of an Undesirable Discharge Certificate.

10.  On 10 June 1972, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 1 year, 1 month, and 18 days of total active service.

11.  On 13 June 1982, the Army Discharge Review Board disapproved his request for an upgrade of his discharge.

12.  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 UOTHC is normally considered appropriate.

13.  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.

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's record shows he was nearly 18 years of age at the time of his enlistment.  Although his record shows he served in Vietnam, there is no evidence that indicates his age or his assignment to Vietnam contributed to his misconduct.

2.  The applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial.  He acknowledged he could be ineligible for many or all benefits administered by the VA and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  There is no indication that his request was made under coercion or duress.

3.  The evidence of record shows he was charged with AWOL and threatening to injure and kill a Solider.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

4.  The ABCMR does not upgrade discharges solely for the purpose of making the applicant eligible for benefits.  Every case is individually decided based upon its merits when an applicant requests a discharge upgrade.

5.  The available evidence is insufficient 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 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)                                         AR20110010216



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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