IN THE CASE OF:	 

		BOARD DATE:	    23 October 2012

		DOCKET NUMBER:  AR20120007067 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states because of the head wound he incurred in Vietnam, he was not thinking right.  He tried to get help but instead he was bullied out of the Army.  When he was in Vietnam, he was out "sand bagging" and a mortar attack occurred.  His head split open and he received 14 stitches.  The doctor said to give him a Purple Heart but he did not receive it.  Today it feels like déjà vu all the time; he has headaches and no concentration.

3.  The applicant provides two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and his DA Form 20 (Enlisted Qualification Record.

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 28 June 1968 for a period of 3 years.  He held military occupational specialty 67N (UH-1 Helicopter Repairman).  He served in Vietnam from 4 January 1969 to 1 January 1970.  On 10 February 1970, he was assigned to Fort Rucker, AL. 

3.  On 28 June 1970, he was honorably discharged at Fort Rucker for the purpose of immediate reenlistment.  He completed 2 years and 1 day of total active service during this period of service.

4.  The DD Form 214 he was issued for this period of service does not show the Purple Heart.

5.  On 29 June 1970, he reenlisted in the RA.  On 12 September 1970, he was assigned to the 703rd Maintenance Battalion, Germany.

6.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on:

* 13 February 1972, for being absent without leave (AWOL) from his assigned unit from 26 to 29 January 1972
* 19 June 1972, for failing to report to his assigned place of duty on three separate occasions
* 5 September 1972, for being AWOL from his assigned unit from 17 to 26 August 1972

7.  On 20 October 1972, he was reported AWOL from his assigned unit and on 18 November 1972 he was dropped from the rolls (DFR) of his unit.

8.  His record contains a DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 10 January 1973, wherein it stated the applicant was returned to military control on 15 December 1972 and he was pending court-martial action.

9.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, the DD Form 214 he was issued for this period of service shows he was discharged on 26 January 1973 


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, in the rank/grade of private (PV1)/E-1, with an Undesirable Discharge Certificate.  He completed 2 years, 5 months, and 10 days of net active service during this period of service with 67 days of time lost.

10.  His available medical records are void of any evidence that shows he was treated for a head wound/trauma while on active duty.

11.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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 Veterans Administration 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 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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  However, the available evidence shows he went AWOL on at least three occasions for a total of 67 days and he was subsequently charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial.

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.

3.  The applicant contends his discharge should be upgraded because he received a head wound while in Vietnam that interfered with his ability to think right.  However, there is no evidence of record and he has not provided any evidence to support this contention.  Additionally, it can be presumed he was in sound medical condition after he returned from Vietnam as he was fit enough to reenlist in the RA on 29 June 1970.

4.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120007067



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ABCMR Record of Proceedings (cont)                                         AR20120007067



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