IN THE CASE OF:	  

		BOARD DATE:	  20 September 2012

		DOCKET NUMBER:  AR20120005548 


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) and amendment of his narrative reason for separation to medical.

2.  The applicant states he was instrumental in breaking up a drug ring in Vietnam.  Because of the personnel involved, his life was placed in danger and he was forced to resign.  He was not court-martialed but made to resign.

3.  The applicant provides copies of an issue checklist, his DD Form 214 (Report of Transfer or Discharge), and a medical statement.

4.  The applicant died on 20 June 2012.  His widow requests continuation of his application.  She submits copies of their marriage certificate and his death certificate.

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 basis to waive the statute of limitations for timely filing.

2.  The applicant's service medical and dental records are believed to be on permanent loan to the Department of Veterans Affairs (VA) and are not available for review.

3.  The applicant enlisted in the Regular Army on 31 May 1963 and reenlisted on 14 July 1964.  He served in Vietnam from May 1965 through May 1966.

4.  On 26 August 1968, a special court-martial found the applicant guilty of being absent without leave (AWOL) from 17 November 1967 through 31 July 1968 (110 days).

5.  In addition to the special court-martial, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 27 October 1966, for missing a mandatory formation;

	b.  on 23 February 1967, for being AWOL from 14 February through 16 February 1967 (3 days);

	c.  on 7 September 1967, for being AWOL from 22 June through 21 July 1967 (30 days);

	d.  on 9 September 1968, for being absent from his place of duty; and

	e.  on 4 December 1968, for violating a general regulation by failing to have a valid pass when apprehended in a bar.

6.  The applicant was assigned to Vietnam a second time, arriving on 13 January 1969.  The applicant was reported AWOL from 15 January 1969 through 11 June 1970 (512 days).  His AWOL ended when he was apprehended in Saigon, Vietnam.

7.  General court-martial charges were preferred for desertion (later reduced to AWOL), impersonating a noncommissioned officer, and possession of seven falsified or unauthorized government documents.

8.  On 15 July 1970 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if his request were accepted, he could receive a discharge under other than honorable conditions and be furnished a UD Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UD.

9.  On 11 September 1970, the general court-martial convening authority approved the discharge request and directed the applicant receive a UD.

10.  The applicant was discharged on 19 September 1970.  He completed 3 years and 26 days of creditable service during this period with over 820 days of lost time.

11.  On 18 June 1980, the Army Discharge Review Board denied the applicant's request to upgrade his character of service and did not deem it appropriate to change his narrative reason for discharge.

12.  The available record contains no evidence the applicant was involved in uncovering a drug ring while serving in Vietnam.

13.  There is no indication in the available record that the applicant was suffering from any medical condition at the time of his discharge.  The medical statement provided reflects medical conditions as they exist 42 years after his discharge.

14.  Army Regulation 635-200 sets forth the requirements and procedures for administrative discharge of enlisted personnel.

	a.  An honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  A general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  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.  A UD Certificate would normally be furnished to an individual who was discharged for the good of the service.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the offenses for which the applicant requested voluntary discharge and is appropriate for the applicant's record of military service during his second term of enlistment.

2.  The record does not contain and the applicant has not provided any evidence to support his statement that he was involved in uncovering a drug ring while serving in Vietnam or that this activity placed him in a situation where a request for discharge under the provisions of Army Regulation 635-200, chapter 10, was his only viable option.

3.  The applicant was discharged due to repetitive and extensive periods of AWOL.  His service during his second term of enlistment cannot be considered satisfactory and is devoid of any mitigating factors as to warrant an upgrade of his discharge.

4.  The record does not contain and the applicant has not provided any evidence to support a finding that he was suffering from any medical condition at the time of his discharge.  The development of medical conditions post-service does not warrant changing the narrative reason for his separation.

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)                                         AR20120005548



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ABCMR Record of Proceedings (cont)                                         AR20120005548



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