IN THE CASE OF:	  

		BOARD DATE:  20 November 2012

		DOCKET NUMBER:  AR20120007885 


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 a general discharge.

2.  He states when he joined the Army other people got a free pass by going to Canada or committing other actions to keep from serving.  He describes how excited he was to graduate near the top of his class in crew chief training.  He joined the Army for a career but his dream was cut short in Vietnam and he did not receive any help when he returned stateside.  It not only messed up his career, but ruined his life in general.  He describes his disappointment with Vietnam and lists several medical conditions that he currently has including being diagnosed with post-traumatic stress disorder and needing counseling or some kind of therapy.

3.  He provides no additional documentary evidence.

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 22 March 1971.  He was awarded the military occupational specialty of 67N (UH-1 Helicopter Repairman).  The highest rank/grade he held was specialist four/E-4.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served more than 10 months in the Republic of Vietnam.  This form further shows he was absent without leave (AWOL) on two occasions for periods of 4 and 64 days with 37 days of confinement.

4.  He accepted nonjudicial punishment on 23 December 1971, while in Vietnam, for violating a general order by permitting approximately eight unauthorized personnel to loiter at his interior guard post.  

5.  Headquarters, 194th Armored Brigade, Special Court-Martial Order Number 61, dated 18 April 1973, shows on 21 March 1973 he was convicted by a special court-martial of:

* being AWOL during the period on or about 30 October 1972 to on or about 2 January 1973
* going from his appointed place of duty without authority
* willfully disobeying a lawful order 

6.  His complete discharge packet is not contained in his records.  However, on 18 May 1973, he was discharged under the provisions of Army Regulation      635-200 (Personnel Separations), chapter 13, with a separation program number of 28B (unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities), with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed 1 year, 10 months, and 15 days of total active service with 102 days of time lost.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 13, in effect at the time, established policy and provided procedures and guidance for eliminating enlisted personnel found to be unfit for further military service.  It provided for the separation of individuals for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  When separation for unfitness was warranted, an undesirable discharge was normally given.

	b.  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.  His contentions regarding other people avoiding military service, his disappointment with Vietnam, his medical conditions including being diagnosed with post-traumatic stress disorder, and needing counseling or some kind of therapy are noted.  However, these factors are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  He was discharged under the provisions of Army Regulation 635-200, chapter 13, for unfitness due to frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had 102 days of time lost.  This misconduct renders his service unsatisfactory.

3.  While his discharge packet is not available, the Board starts its consideration with a presumption of regularity that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

5.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to 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 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)                                         AR20120007885



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ABCMR Record of Proceedings (cont)                                         AR20120007885



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