IN THE CASE OF:

		BOARD DATE:  21 February 2012

		DOCKET NUMBER:  AR20110016383 


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.

2.  The applicant states he would like his discharge upgraded so he can use the Department of Veterans Affairs (VA) hospital and to know that the country is fair.  He further states the record is not in error or unjust.  He just believes he has not done anything bad to the Army or the country.  He was young and dumb at the time.  He is a Vietnam veteran who fought for his country and never did anything really bad.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 inducted into the Army of the United States on 25 May 1966.  He completed his training and he was awarded military occupational specialty (MOS) 62E (Construction Machine Operator).

3.  On 23 February 1967, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 10 October 1966 to
31 January 1967.  He was sentenced to confinement at hard labor for 30 days, a forfeiture of $50.00 pay per month for 1 month, and reduction to the rank/grade of private (PV1)/E-1.

4.  On 26 September 1968, the applicant was convicted by a summary court-martial of being AWOL from 15 July to 30 August 1968.  He was sentenced to forfeiture of $97.00 pay per month for 1 month.

5.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  Item 38 Record of Assignments) he was assigned to Headquarters and Headquarters Company, 15th Engineer Battalion, 9th Infantry Division [Vietnam]  as a construction machine operator from 26 April 1967 through 3 April 1968.

	b.  Item 41 (Awards) no entries.

	c.  Item 44 (Time Lost) the following entries:

FROM
TO (INCLUSIVE)
DAYS
REASON
10 October 1966
30 January 1967
113
AWOL
31 January 1967
20 May 1967
50
Confinement (civilian authorities)
17 June 1968
8 July 1968
22
AWOL
15 July 1968
29 august 1968
46
AWOL
21 October 1968
25 October 1968
4
AWOL
28 October 1968
28 January 1969
93
AWOL
29 January 1969
6 February 1969
9
IHCA (in hands of civilian authorities)
7 February 1969
12 May 1969
94
Confinement
29 June 1969
-
-
DFR (dropped from the rolls of the Army)
6.  The applicant's complete discharge packet is not available for review.  However, his record contains a document that shows on 8 September 1969, having been advised by legal counsel of the basis for his contemplated trial by 


court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him, the applicant 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.

7.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 29 September 1969, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with a character of service of under conditions other than honorable.  He was issued an Undesirable Discharge Certificate in the rank/grade of
PV1/E-1.  He completed 2 years, 6 months, and 5 days of total active service with 300 days of time lost.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  It states:

	a.  Chapter 10 of the version in effect at the time provided that a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.


	b.  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.  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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of all the specific facts and circumstances surrounding his discharge.  His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.

2. He asserts he is a Vietnam veteran who fought for this country.  The record shows he served in Vietnam, but there is no evidence he was in combat.

3.  He further asserts he has not done anything bad to the Army or country; however, his record shows he was convicted by two summary courts-martial and that he had an extensive history of being AWOL, in confinement, and being DFR'd from the Army for a combined total of 300 days.

4.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption, which he failed to do.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general discharge.


6.  The ABCMR also does not grant requests for the upgrade of discharges solely for the purpose of making the applicant eligible for veteran's or other 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.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

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)                                         AR20100015867



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ABCMR Record of Proceedings (cont)                                         AR20110016383



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