IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007854 


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, in effect, that his undesirable discharge be upgraded and that his records be corrected to show he was discharged for medical reasons.  He also requests that his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 24 July 1969, be corrected to show he received his high school general education degree (GED) at Fort Polk, LA, and he attended the Noncommissioned Officer (NCO) Academy at Fort Hood, TX.

2.  The applicant states:

* his DD Form 214 shows he was discharged under conditions other than honorable
* he had no idea he was discharged under dishonorable conditions
* if he went to Canada instead of Vietnam he could have received a pardon

3.  The applicant provides:

* DD Form 214, dated 29 April 1965
* DD Form 214, dated 24 July 1969
* Army Review Boards Agency (ARBA) letter, dated 22 January 2011
* Department of Veterans Affairs (VA) Rating Decision, dated 3 August 2009


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.  On 30 April 1964, the applicant enlisted in the Regular Army (RA) for 3 years. 
He completed training as a general supply specialist.  He was honorably discharged on 29 April 1965 for the purpose of immediate reenlistment.  His DD Form 214 shows he completed 1 year of total active service.  He reenlisted in the RA for 6 years on 30 April 1965 at Fort Polk, LA.

3.  Item 32 (Civilian Education) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he received his high school GED in 1965.  Item 38 (Record of Assignments) shows he was a student at the 4th Army NCO Academy, Fort Hood, TX on 11 September 1966.  He returned to Fort Polk, LA on 31 October 1966.

4.  The applicant arrived in Korea on 30 July 1967.  He departed Korea en route to the United States on or about 13 June 1968.

5.  The applicant accepted nonjudicial punishment on 5 November 1968 for failure to obey a lawful order and failure to go to his appointed place of duty.

6.  The applicant arrived in Vietnam on 16 November 1968.  He departed Vietnam en route to the United States on or about 21 July 1969.

7.  The facts and circumstances surrounding the applicant's discharge are not contained in the applicant's Army Military Human Resources Record (AMHRR).  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 24 July 1969 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed 5 years, 1 month, and 14 days of total active service and he had 51 days of lost time due to being absent without leave (AWOL).  He received an Undesirable Discharge Certificate.  Item 13a (Character of Service) of his DD Form 214 shows he was discharged under conditions other than honorable.  Item 25 (Education and Training Completed) does not show he received his high school GED in 1965 or that he attended the 4th Army NCO Academy in 1966.

8.  A review of the applicant's AMHRR does not show he was suffering from any unfitting conditions while he was in the Army that would have required him to be processed for discharge through medical channels.

9.  The applicant provides a self-authored letter to ARBA, dated 22 January 2011, which states:

* his DD Form 214 fails to reflect the GED program at Fort Polk with a diploma from Leesville, LA
* it also fails to show his attendance at the NCO Academy at Fort Hood, TX, from which he graduated at the top of his class
* he was quickly promoted and life was good
* his mother killed herself and he went home from Korea on emergency leave
* 2 or 3 months after he returned to Korea, he received news that his baby girl had smothered to death
* his wife had asked him for a divorce
* drinking heavily and fooling around with a colonel's wife got him busted the day before leaving for Vietnam
* he found out he had a son, things fell apart, and he set out to go home
* he applied for a percentage of disability for Agent Orange and he found out that the VA had attached the word dishonorable to his records
* he never dishonored his country and the type of discharge he received should have nothing to do with him getting a disease while he was in the Army
* he was young and stupid at the time, but he is currently a senior at the University of Southern Mississippi
* if his records cannot be corrected to show he was discharged for medical reasons, please get rid of anything that associates him with the word dishonorable

10.  The applicant also provides a copy of his VA Rating Decision, dated 3 August 2009, which shows he was denied service-connected disability ratings for diabetes mellitus type II and a heart condition.  The VA Rating Decision states an administrative decision, dated 18 July 1979, held that his period of service from 30 April 1967 to 24 July 1969 was under dishonorable conditions.

11.  Army Regulation 635-5 (Personnel Separation – Separation Documents) is the authority for the preparation of the DD Form 214.  The regulation in effect at that time stated to enter service schools, including major courses which were successfully completed and military-sponsored courses completed in civilian schools and colleges, during the period covered by the DD Form 214 being prepared in item 25.  This entry includes the highest civilian education level acquired during this period of military service.

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

	a.  Chapter 10 states that a member who has 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, an undesirable discharge was normally considered appropriate at the time of the applicant's discharge.

	b.  Paragraph 3-7a states 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 states 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.

13.  Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-3b(1), provides that for an individual to be found unfit by reason of physical disability, he or she must be unable to perform the duties of his office, grade, rank, or rating.

14.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement or Separation), paragraph 2-2b, provides that when a member is being separated by reason other than physical disability, his or her continued performance of duty creates a presumption of fitness which can be overcome only by clear and convincing evidence that he or she was unable to perform his or her duties or that acute grave illness or injury or other deterioration of physical condition, occurring immediately prior to or coincident with separation, rendered the member unfit.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted and his supporting evidence has been considered.

2.  The applicant's AMHRR does not show he was suffering from any unfitting conditions while he was in the Army that would have required him to be processed for discharge through medical channels.

3.  The facts and circumstances surrounding the applicant's discharge are not available.  The available evidence shows he had 51 days of lost time due to being AWOL.  He submitted a request for discharge from the Army for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He was furnished an Undesirable Discharge Certificate which corresponds with a discharge under conditions other than honorable as shown on his DD Form 214.

4.  The applicant's contention that the VA attached the word dishonorable to his records has also been noted.  There is no evidence in his record showing he was dishonorably discharged from the Army.  He should contact the VA regarding the use of the words "under dishonorable conditions" in his VA Rating Decision dated 3 August 2009.

5.  The applicant has provided no evidence to show the type of discharge he received is in error or unjust.  His requests for an upgrade of his discharge and correction of his records to show he was discharged through medical channels should be denied.

6.  The fact that he believes that if he had gone to Canada he would have received a pardon and that he was young and stupid at that time is not a basis for upgrading his discharge.

7.  The evidence of record shows he received his high school GED in 1965 and he attended the 4th Army NCO Academy in 1966.  His DD Form 214 for the period ending 24 July 1969 should be corrected to show the education he successfully completed.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____X____  ___X____  ___X_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending item 25 of his DD Form 214 for the period ending 24 July 1969 to show he received his high school GED in 1965 and attended the 4th Army NCO Academy in 1966.

2.  The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his discharge and correcting his records to show he was discharged through medical channels.



      _____________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)                                         AR20120007854



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ABCMR Record of Proceedings (cont)                                         AR20120007854



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