IN THE CASE OF:	  

		BOARD DATE:	  17 July 2012

		DOCKET NUMBER:  AR20120000682 


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.  He states he should have received an honorable discharge because:

	a.  he was under medical care with duty limitations and

	b.  his unit acted without proper authority and initiated a discharge that was not correct, which has caused him hardship since that time.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and medical documentation.

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 military records show he enlisted in the Regular Army on 27 July 1970 for a period of 3 years.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he held was private first class/
E-3.

3.  He submits a DA Form 3349 (Physical Profile), dated 23 May 1971, indicating he had difficulty hearing.  This form stated he was not to be assigned to duty involving habitual or frequent exposure to loud noises or firing of weapons (not to include firing for qualification) or to duty involving acute hearing.  It also showed the condition to be temporary in nature.

4.  He accepted nonjudicial punishment (NJP) on 5 September 1971 for being absent from his place of duty while serving in Vietnam.

5.  On 2 November 1971 while serving in Vietnam, court-martial charges were preferred against him for:

* being absent without leave (AWOL) from 21 to 26 October 1971
* being in an off-limits area without authorization
* failing to obey a lawful order

6.  He again accepted NJP on 29 November 1971 for disobeying a lawful order and breaking restriction while serving in Vietnam.

7.  On 16 December 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to his request.

	a.  He further acknowledged he understood that if his discharge request were accepted, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

	b.  He submitted a statement on his own behalf.  He stated that upon his arrival in Vietnam he served in the field the entire time with his first unit of assignment.  His difficulties stemmed primarily from problems which began the first day with the first sergeant in his new unit when his first sergeant offered him NJP when he returned from breakfast in the mess hall.  Although his record was absolutely clean prior to this time, he was thereafter labeled a trouble maker.  He further stated he had a hearing loss and was being considered for medical evacuation back to the continental United States.  He also stated he requested a different work assignment within the unit, which was not approved.  He requested a general discharge in order to continue his education.

	c.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel and was advised 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.  He waived his rights in conjunction with this consultation.

8.  A Standard Form 88 (Report of Medical Examination), dated 23 December 1971, shows his examination was normal, to include his hearing.

9.  On 26 December 1971, the separation authority approved the applicant’s request for discharge and directed his discharge be under other than honorable conditions.

10.  On 5 January 1972, he was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  He completed a total 1 year, 5 months, and 9 days of net active service.

11.  On 27 March 1979, the Army Discharge Review Board denied his request to upgrade his undesirable discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10, of the version in effect at the time, provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  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.  The applicant contends that his discharge should be upgraded because he was under medical care with duty limitations, which was in part the basis for his problems resulting in his discharge.  His medical records show he had a temporary hearing loss significant enough to warrant assignment limitations at the time.  His hearing appeared to be “normal” at the time of his physical examination completed in conjunction with his discharge from the Army.  He provided no explanation as to how his hearing loss caused or excused/justified his behavior.  Therefore, his having suffered from a hearing loss and that being the cause of his discharge is not considered a basis to upgrade a properly-issued discharge.

2.  He received NJP for being absent from his place of duty and disobeying a lawful order.  Court-martial charges were preferred against him for being AWOL, being in an off-limits area without authorization, and failing to obey a lawful order.  Therefore, his service was unsatisfactory.

3.  He voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  This serious misconduct warranted his discharge under other than honorable conditions.  Both his characterization of service and the reason for discharge were appropriate considering the facts of the case.  Contrary to his contentions, the records contain no indication of procedural or other errors that would have jeopardized his rights.

5.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable or a general discharge.

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)                                         AR20120000682



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ABCMR Record of Proceedings (cont)                                         AR20120000682



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