IN THE CASE OF:	  

		BOARD DATE:	   31 January 2012

		DOCKET NUMBER:  AR20110015485 


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 to an honorable or a general discharge.

2.  The applicant states:

* the military failed to give due consideration to his very young age and his previous honorable service, including a full tour of duty in Vietnam
* he had served honorably on active duty well over 2 years before going absent without leave (AWOL)
* while in Vietnam he was exposed to combat action on several different occasions
* he earned an Army Commendation Medal with an Oak Leaf Cluster
* he went to Vietnam at a very early age (18), experienced very stressful events, and was emotionally ill-prepared to experience marital difficulties upon returning from Vietnam
* the Army Discharge Review Board granted an upgrade of his discharge, but it was not recognized by the Department of Veterans Affairs (VA)
* he was told that the VA would recognize a military corrections board upgrade

3.  The applicant provides copies of documents contained in his Official Military Personnel File (OMPF), which include, but are not limited to:

* two letters from the American Legion
* DD Forms 214
* VA Administrative Decision
* VA Letter, dated 3 September 1985
* OSA Forms 172 (Army Discharge Review Board Case Report and Directive)
* Requests for Absentee Records
* Notices of Unauthorized Absences from the U.S. Army
* Morning Reports
* DA Form 2627-1 (Report of Proceedings under Article 15, UCMJ)
* Witness Statements
* Discharge Packet
* Report of Mental Status Evaluation

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests to be informed of all actions taken in the applicant's case.

2.  Counsel makes no additional statements.

3.  Counsel provides no additional 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.  The applicant enlisted in the Regular Army (RA) on 24 March 1970.  He completed training as an 0-1/4-6 airplane repairman.  He was honorably discharged for the convenience of the government on 17 January 1971.

3.  He reenlisted in the RA on 18 January 1971.  He arrived in Vietnam on 22 September 1971 and was assigned to the 221st Aviation Company.

4.  He departed Vietnam en-route to Fort Hood, Texas on 10 November 1971.

5.  The applicant accepted nonjudicial punishment (NJP) on 10 March 1972 for being AWOL from 7 February 1972 until 15 February 1972. 

6.  On 4 October 1972, he was convicted, pursuant of his plea, by a Special Court-Martial of being AWOL from 7 August 1972 until 2 September 1972.

7.  The applicant was notified that he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13-5a, for unfitness.  His commander cited four AWOL offenses as a basis for the recommendation for discharge.  He acknowledged receipt of the notification on 11 September 1973.  After consulting with counsel he waived his right to submit a statement in his own behalf.

8.  The appropriate authority approved the recommendation for discharge on 27 September 1973 and directed the issuance of an Undesirable Discharge Certificate.

9.  On 4 October 1973, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 13-5a, for unfitness – frequent involvement in incidences of a discreditable nature with military or civilian authorities.  He completed 2 years, 8 months, and 14 days of total active service.  He received an Undesirable Discharge Certificate.

10.  The DD Form 214 he received shows the following lost time dates totaling 296 days:

* 7 February 1972 through 14 February 1972
* 7 August 1972 through 1 September 1972
* 30 November 1972 through 11 February 1973
* 13 February 1973 through 13 August 1973
* 29 September 1973 through 4 October 1973

11.  On 10 December 1980, the Army Discharge Review Board granted his request for an upgrade of his undesirable discharge to general discharge (under honorable conditions), based on inequity.  The ADRB also changed his narrative reason for separation and separation authority from Army Regulation 635-200,     chapter 13-5a to Army Regulation 635-200, chapter 14-33b, misconduct – frequent incidents of a discreditable nature with civil or military authorities.

12.  The applicant submits a VA Administrative Decision approved on 3 September 1985, informing him that his discharge on 4 October 1973 remains a bar to VA benefits.  The VA Administrative Decision cites his dates of AWOL and informs him that he did not perform honest, faithful, and meritorious service for the period 24 March 1970 to 23 March 1973, the period of service for which he was obligated.  He was told that eligibility to VA benefits could not be established for his obligated period of service.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

   a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

	b.  Paragraph 3-7a 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; and

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  Based on the available evidence, consideration was given to his age and tour of duty in Vietnam when the ADRB upgraded his discharge from undesirable to general on 10 December 1980.  He currently has a general discharge.

3.  He had 296 days of lost time to due to AWOL.  His service was not fully honorable and the DD Form 214 issued to him as a result of the ADRB's decision appropriately reflects his character of service.

4.  The VA Administrative Decision he submits cites his dates of AWOL and his less than honest, faithful, and meritorious service for the period 24 March 1970 to 23 March 1973, as the basis for his bar to VA benefits.  VA decisions are not within the provisions of this Board and must be addressed by the VA.


5.  In view of the foregoing, his request should be denied.

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)                                         AR20110015485





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ABCMR Record of Proceedings (cont)                                         AR20110015485



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