IN THE CASE OF:	  

		BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002116 


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 (UD).

2.  The applicant states he came home on emergency leave because his grandmother, who raised him, died.  He was unable to deal with the things he had to do in Vietnam and his father took him to a psychiatrist.  He did not return to his unit.  He still has nightmares and suffers from post-traumatic stress disorder.  He is unable to get help from the Department of Veterans Affairs (VA) clinic due to the characterization of his discharge.  He would like his discharge upgraded so he can receive health benefits.  

3.  The applicant provides:

* VA Form 21-4138 (Statement in Support of Claim), dated 4 January 2012
* Letter from the American Legion, dated 6 January 2012
* Letter from Congressional Representative, dated 14 February 2012

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.  After having had prior enlisted service, the applicant enlisted in the Regular Army on 29 April 1968 and held the military occupational specialty 67N 
(UH-1 Helicopter Repairman).  

3.  His DA Form 20 (Enlisted Qualification Record) shows he was assigned to Vietnam from 23 June 1968 to 25 February 1969 and later to Fort Sheridan, IL, on 30 April 1969. 

4.  His records show he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 
2 November 1970 for being absent without leave (AWOL) from 24 October 1970 to 29 October 1970.

5.  On 10 October 1975, court-martial charges were preferred against him for one specification of being AWOL from 22 November 1970 to 23 September 1975.

6.  On 14 October 1975, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, the issuance of an Undesirable Discharge Certificate, and the procedures and rights that were available to him.  Subsequent to receiving this legal counsel and without coercion, 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.

7.  In this request for discharge he acknowledged he understood if his discharge request was 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 14 October 1975, he submitted a statement in his own behalf wherein he stated, in effect, he went AWOL because he was unable to handle the emotional repercussions resulting from what he had to do while he was serving in Vietnam.  Additionally, he had a two year old daughter who needed his care.  He felt his place was at home caring for his daughter, not serving in the Army.
9.  On 17 October 1975, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial, with an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.  Accordingly, he was discharged on 22 October 1975.

10.  His DD Form 214 (Report of Separation from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 
22 October 1975 in the rank/grade of private/E-1 with a UD.  This form further confirms he completed 2 years, 7 months, and 18 days of creditable active service with 1,259 days of lost time.

11.  On 28 February 1980, the Army Discharge Review Board considered his request to upgrade his discharge, determined he was properly and equitably discharged, and denied his request to upgrade his discharge.

12.  He provided a VA Form 21-4138, dated 4 January 2012, wherein he stated he was applying for an upgrade of his discharge because he felt remorseful about the events which occurred during his military service; however, he made mistakes because he was young and not used to the stresses of life at such a young age.

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

	a.  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.

	b.  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.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The evidence shows that having been advised by legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

2.  His record contains NJP under the provisions of Article 15 and an extensive period of AWOL.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.

3.  The ABCMR does not grant requests for the correction of records solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a correction to his military records.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting an honorable or a general discharge in this case.

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)                                         AR20120002116





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ABCMR Record of Proceedings (cont)                                         AR20120002116



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