IN THE CASE OF:	  

		BOARD DATE:	  29 May 2012

		DOCKET NUMBER:  AR20110022637 


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.

2.  The applicant states he enlisted in the Army in 1966, was sent to Germany, and served overseas for 27 months.

	a.  He volunteered for assignment to Vietnam.  While in Vietnam, he was sent home on a 45-day emergency leave because his father was ill.  He returned to Vietnam and applied for a hardship discharge; however, it was denied.

	b.  He completed his tour of duty in Vietnam and was assigned to Fort George G. Meade, Maryland.  By this time, his father was in a coma and his mother was experiencing the onset of Alzheimer's disease.  The pressure was too much for him, so he went absent without leave (AWOL).

	c.  He states that he served in the Army with honor until he went AWOL.  He would like his discharge upgraded so that he will be eligible for veteran benefits.

3.  The applicant provides no additional documentary evidence in support of his application.

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 15 June 1966 for a period of 3 years.  He completed training, was awarded military occupational specialty 62B (Engineer Equipment Repairman), and he was assigned overseas to Germany on 14 September 1966.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably discharged on 29 January 1968 to reenlist in the RA.  He had completed 1 year, 7 months, and 15 days of active service.

4.  The applicant reenlisted in the RA on 30 January 1968 for a period of 3 years. He departed Germany on 23 April 1968 en route to Vietnam.

5.  On 11 April 1969, the applicant requested a compassionate reassignment to Fort George G. Meade, Maryland.

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

	a.  item 31 (Foreign Service) that he served in Vietnam from 25 May 1968 through 24 May 1969; and

	b.  item 38 (Record of Assignments) that he was assigned to Company C, 75th Engineer Battalion (Construction), Fort George G. Meade, Maryland, on
3 July 1969.

7.  On 10 March 1970, court-martial charges were preferred against the applicant for violation of the Uniform Code of Military Justice (UCMJ), Article 86, for, without authority, being absent from his unit from 17 July 1969 to 4 March 1970.

8.  On 30 March 1970, 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.  The applicant elected not to submit any statements with his request.

	c.  The applicant and his counsel placed their signatures on the document.

9.  The applicant's commander recommended approval of the request for discharge with an Undesirable Discharge Certificate.

10.  On 24 April 1970, the separation authority approved the applicant's request for discharge and directed he receive an Undesirable Discharge Certificate.  

11.  The applicant's DD Form 214 shows he was discharged on 24 April 1970 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, 7 months, and 5 days of active service this period.

	b.  He had 230 days lost under Title 10, U.S. Code, section 972, from 17 July 1969 through 3 March 1970.

12.  On 12 January 1980, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting an upgrade of his undesirable discharge to a general discharge.  On 6 March 1981, the ADRB determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

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.

14.  Title 38 of United States Code provides a broad range of programs and services offered by the U.S. Department of Veteran Affairs for which veterans of the U.S. Armed Forces may be eligible.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he served in the Army with honor and he would like to be eligible for veteran benefits.

2.  Records show that a DD Form 214 documents the applicant's period of honorable active duty service from 15 January 1966 through 29 January 1968.

3.  Records show the applicant was charged under the UCMJ with Article 86 for being AWOL from 17 July 1969 to 4 March 1970.

4.  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 during the period of service under review. Considering all the facts of the case, the characterization of service was appropriate and equitable.

5.  The applicant elected to request discharge in lieu of being court-martialed, he had 230 days lost (i.e., 7 months and 20 days), and he completed only about one-half of his 3-year enlistment obligation.
6.  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 or general discharge.  

7.  In view of the foregoing, there is no basis for granting the requested relief.

8.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans' 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 veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for health care (and other benefits) should be addressed to the Department of Veterans Affairs or appropriate government agency.

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)                                         AR20110022637



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ABCMR Record of Proceedings (cont)                                         AR20110022637



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