IN THE CASE OF:	 

		BOARD DATE:	  18 January 2012

		DOCKET NUMBER:  AR20110013887 


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 to an honorable discharge.

2.  The applicant states he enlisted in the Army at the age of 18 and he was initially assigned overseas to Germany.  He reenlisted while he was in Germany and he received an honorable discharge.

	a.  He deployed to Vietnam where he did two tours of duty.  He was awarded the Bronze Star Medal, several service ribbons, two overseas service bars, and his unit received the Presidential Unit Citation.

	b.  He states his daughter and her mother were killed in Vietnam when their village came under attack by the Viet Cong.  He adds, in retrospect, he was unprepared for the magnitude of the experience and its impact on him.

	c.  He returned to the United States on leave and went absent without leave (AWOL).  He eventually turned himself in to military authorities and he was subsequently discharged under other than honorable conditions.

	d.  He applied to the Department of Veterans Affairs (VA) for medical benefits and provided the VA copies of his discharge documents.  He was told that his records were burned in the fire that occurred in 1973 at the National Personnel Records Center and he was granted health care by the VA in 2007.


	e.  On 11 May 2008, the VA informed him that he was not eligible for medical care due to the characterization of his discharge.

	f.  The applicant outlines the life-threatening and chronic medical conditions he has and the difficulties he is having in obtaining medical care and coverage for his prescriptions.

	g.  He asks the Board to take into consideration his military awards and decorations, post-service employment record, contributions to his community, and his dedication to family.

3.  The applicant provides:

* a self-authored letter
* a letter of appreciation
* five military certificates
* his two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge)\
* three civilian certificates
* three letters of support
* VA rating documents

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's undesirable discharge to an honorable discharge.

2.  Counsel defers to the applicant.

3.  Counsel provides no additional documentary evidence.

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.  A DD Form 214 shows the applicant enlisted in the Regular Army (RA) for a period of 3 years on 23 January 1970 and he was honorably discharged on
21 March 1971 for the purpose of immediate reenlistment.

	a.  He completed 1 year, 1 month, and 14 days of total active service.

	b.  Item 24 (Decorations, Medals, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal.

3.  The applicant reenlisted in the RA for a period of 3 years on 22 March 1971.

4.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) the entry:

* Germany from 13 June 1970 through 28 June 1971
* Vietnam from 15 August 1971 through 14 August 1972

	b.  item 38 (Record of Assignments) he served in Vietnam as a heavy vehicle driver from 2 September 1971 to an unspecified date;

	c.  item 41 (Awards and Decorations) the:

* National Defense Service Medal
* Vietnam Service Medal

	d.  item 44 (Time Lost Under Section 972, Title 10 U.S. Code and Subsequent to Normal Expiration of Term of Service) the entry:

* AWOL - 7 days, from 31 December 1970 through 6 January 1971
* AWOL - 44 days, from 11 March through 23 April 1972
* AWOL - 326 days, from 12 May 1972 through 2 April 1973

5.  On 4 April 1973, court-martial charges were preferred against the applicant for violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being absent from his unit from 12 May 1972 to 3 April 1973.


6.  On 9 April 1973, the applicant consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he was not subjected to coercion with respect to his request for discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Undesirable Discharge Certificate.

	b.  He was also advised that he could submit any statements he desired in his own behalf.

		(1)  The applicant elected to submit a statement with his request and acknowledged he had been advised of his rights, his statement was voluntary and of his own free will, and that he did not need rehabilitation.

		(2)  In response to being asked his attitude towards the type of discharge he will receive if his application for discharge is approved, the applicant wrote "a U.D. [Undesirable Discharge] is not a bad discharge."

		(3)  The applicant and a witness placed their signatures on the document.

7.  The applicant's immediate and intermediate commanders recommended approval of the request for discharge with an undesirable discharge.

8.  On 19 April 1973, the separation authority approved the applicant's request for discharge and directed he receive an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 16 May 1973 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an Undesirable Discharge Certificate.

	a.  He completed 1 year, 1 month, and 20 days of net service this period.

	b.  Item 30 (Remarks) shows he had 370 days of time lost.

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


11.  In support of his application, the applicant provides:

	a.  an Open Letter of Appreciation, dated 14 August 1970, from the Boy Scout Committee Chairman, that shows the applicant and several other individuals were commended for voluntarily serving the encampment in various roles including that of "big brother";

	b.  five military certificates issued to the applicant for completing the heavy vehicle driver, light vehicle driver, and wheeled vehicle organizational maintenance courses, and for contributing to the combat readiness and mission of units in both Germany and Vietnam;

	c.  two certificates of appreciation, dated 26 March 2004 and 26 March 2006, issued to the applicant for his service in the Nebraska Pork Partners;

	d.  a certificate of appreciation issued to the applicant upon meeting the requirements for membership in The American Legion;

	e.  three letters of support that show:

		(1)  his former manager attests to the applicant's performance as a painter at an Earl Scheib Auto Painting Shop from 1 January 1975 through 23 January 1977 and 11 June 1980 through 1 June 1981;

		(2)  his pastor attests to his attendance at Sunday morning services on a regular basis at his church and his participation in community events; and

		(3)  a friend attests to the applicant's personal traits and his character.

	f.  a Veterans Advocacy Group, Lincoln, NE, letter, dated 22 May 2008, that shows Mr. Orville F. B---- reviewed the applicant's discharge for the period of service from 23 January 1970 through 21 March 1971 [emphasis added] and indicated "this period of his service was "Under Other Than Honorable Conditions."  He also informed the applicant that a $500.00 non-refundable deposit would be required in order to begin the process of assisting him in getting his discharge upgraded.

	g.  six VA letters dated:

* 20 November 2007, that enrolled the applicant in the VA health care system
* 10 April 2008, that acknowledged receipt of the applicant's claim


* 30 April 2008, that shows the applicant's military service beginning
23 January 1970 and ending 16 May 1973 was not honorable, and the VA would have to make a decision about his service
* 3 May 2010, that acknowledged the VA was working on the applicant's claim for Agent Orange consideration
* 6 May 2010, that shows the VA determined the applicant's discharge from military service on 16 May 1973 was issued under conditions which constitute a bar to the payment of veterans benefits
* 7 May 2010, that notified the applicant the Lincoln Nebraska Regional Office confirmed he was no longer eligible to receive VA healthcare benefits and that a social worker would be contacting him to assist in transitioning his health care to a private provider

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.

	c.  Chapter 3, 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 contends that his undesirable discharge should be upgraded to honorable based on his overall record of military service, his post-service achievements, and because it will allow him to obtain veteran's benefits.

2.  Records show the applicant's initial period of honorable active service from
23 January 1970 through 21 March 1971 is documented by a DD Form 214.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offense that led to his discharge outweighs his overall record of service.  Considering all the facts of the case (his record of going AWOL began before he ever arrived in Vietnam), the characterization of service directed for the period of service under review (i.e., 22 March 1971 through 16 May 1973) was appropriate and equitable.

4.  Records show the applicant had 370 days of time lost and he completed less than 14 months of his 3-year enlistment obligation.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  The applicant's contentions regarding his post-service achievements and conduct were considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.

6.  The ABCMR does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veteran's benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care and other benefits should be addressed to the VA.

7.  In view of all 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)                                         AR20110013887



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110013887



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1