IN THE CASE OF:	  

		BOARD DATE:	  10 January 2012

		DOCKET NUMBER:  AR20110013775 


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 discharge under other than honorable conditions (UOTHC) be upgraded.

2.  He states he served honorably from January 1964 through January 1965 without a blemish in his records.  He reenlisted and, shortly thereafter, he was deployed to Vietnam.  He was severely wounded and earned the Purple Heart and Bronze Star Medal (BSM) with “V” Device.

3.  He wants to change his character of service on his DD Form 214 (Certificate of Release or Discharge from Active Duty) to properly reflect his honorable service and valor while serving in the Republic of Vietnam (RVN). 

4.  He provides:

* Two DD Forms 214
* BSM with “V” Device orders
* A checklist
* A letter
* Department of Veterans Affairs (VA) documents

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.  His records show he enlisted in the Regular Army on 29 January 1964.  After completion of training, he served in military occupational specialty (MOS) 11E (Armor Crewman).  He reenlisted on 30 January 1965 for an additional 6 years of military service.

3.  His DA Form 20 (Enlisted Qualification Record) shows the following information:

* Item 31 (Foreign Service) – he served 21 months in Germany and 
3 months in Vietnam 
* Item 33 (Appointments and Reductions) – the highest grade he attained was specialist four/E-4
* Item 40 (Wounds) – he sustained a bullet wound to his right wrist
* Item 41 (Awards and Decorations) – his significant awards include the Purple Heart, BSM with “V” Device, and the Army Good Conduct Medal (1st Award)
* Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date Expiration Term of Service) – he had four periods of absence without leave (AWOL) for a total of 4,408 days

4.  He provided a copy of orders which award him the BSM with “V” Device for heroism on 9 and 10 August 1966 while serving in Vietnam.  While pinned down by heavy automatic weapons fire, he began assisting in the direction of fire at the enemy.  Despite his wounds, he continued to expose himself to the enemy in order to observe their exact location.  His efforts were responsible for the elimination of two enemy machine gun positions and the defeat of more than 
10 enemy Soldiers.  

5.  Item 38 (Record of Assignments) of his DA Form 20 shows that upon his return from Vietnam, he was assigned to Troop E, 9th Cavalry, Camp Roberts, CA.  He received all “Excellent” ratings in conduct and efficiency during this period and went AWOL on three separate occasions.  

6.  He provided a copy of a Characterization of Service Checklist for Administrative Discharge Actions which shows his last period of AWOL was from 16 January 1969 through 15 December 1980.  As a result, on 30 December 1980 court-martial charges were preferred against him.

7.  On 31 December 1980, after consulting with legal counsel, he voluntarily requested a 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.  He was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and VA benefits.  He submitted a statement on his own behalf.  

8.  He stated he wanted to be discharged because he felt the Army was no longer as strict and meaningful as it was when he had first joined.  The only period he actually worked in his MOS was during his tour in Vietnam. 

9.  His records show his chain of command supported his request for discharge for the good of the service in lieu of trial by court-martial and recommended he receive a UOTHC discharge.

10.  The general court-martial convening authority approved the applicant's request and directed he be discharged UOTHC and reduced to the grade of private/E-1.

11.  On 13 March 1981, he was discharged UOTHC under the provisions of Army Regulation 635-200, chapter 10.  He had completed 5 years and 18 days of total active service with 4,408 days of lost time due to AWOL.

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.  

13.  He provided a letter, dated 30 October 2006.  This document shows he was diagnosed with Post-Traumatic Stress Disorder as a result of serving in Vietnam.  

14.  He also provided a letter from the VA which shows he was granted benefits and is being paid at the 100 percent rate because he is unemployable due to his service-connected disability. 

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment under the Uniform Code of Military Justice (UCMJ) 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 had been preferred.  A discharge UOTHC is normally considered appropriate, but the separation authority could direct an honorable or a general discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

16.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would had been clearly inappropriate.

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

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his UOTHC discharge was carefully considered; however, it is not supported by the evidence of record.

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  His record of service and valorous acts were also taken into consideration.  While his award of the Purple Heart and the BSM with “V” Device are most noteworthy, considering all the facts presented and his lengthy period of AWOL, his service does not warrant an upgrade of his discharge. 

3.  The evidence shows court-martial charges were preferred against him for going AWOL in excess of 10 years; however, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offense under the UCMJ.  His chain of command supported his request and he was discharged accordingly.

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally UOTHC and the evidence shows he was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant the 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)                                         AR20110013775





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ABCMR Record of Proceedings (cont)                                         AR20110013775



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