IN THE CASE OF:	  

		BOARD DATE:	  31 January 2013

		DOCKET NUMBER:  AR20120011520 


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, an upgrade of his under conditions other than honorable discharge to an honorable or a general discharge.

2.  The applicant states:

	a.  He feels his service to his country should be considered because he did his job in Vietnam.  He had the desire to serve his country in the Vietnam conflict as a helicopter repairman and door gunner.  At the time he enlisted he was 18 years old and took his duties very seriously.  He progressed from the rank of private to specialist four in a 7-month period.  However, when he got to Vietnam it wasn't long before he started drinking alcohol and doing a lot of drugs.

	b.  After all the experiences he had in Vietnam, he was not the same when he returned to the United States.  He had difficulty adapting to life and had a lot of anxiety and depression.  He kept drinking and doing drugs and he could not meet requirements.  He thinks his service in Vietnam should qualify him for Department of Veterans Affairs (VA) benefits, disability, and other benefits related to Agent Orange exposure.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).



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's records show he enlisted in the Regular Army on 28 January 1971 and he held military occupational specialty 67U (CH-47 Helicopter Repairman).  He served in Vietnam as follows:

* 15 August 1971 - 15 January 1972, assigned to Battery A, 377th Artillery
* 16 January - 14 August 1972, assigned to the 180th Assault Support Helicopter Company, 1st Aviation Brigade

3.  On 10 February 1972, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping on guard duty in an area subject to hostile fire.

4.  On or about 19 September 1972, he was assigned to the 196th Aviation Company, Fort Bragg, NC.

5.  He received NJP under the provisions of Article 15, UCMJ, as follows:

* 3 October 1972, for failing to report to his assigned unit on the proper reporting date and being absent without leave (AWOL) from
19 – 26 September 1972
* 26 December 1972, for being AWOL from his assigned unit from
19 – 20 December 1972
* 16 March 1973, for being AWOL from his assigned unit from
12 -13 March 1973

6.  On 11 October 1973, he was reported as AWOL from his assigned unit.

7.  On 30 November 1973, court-martial charges were preferred against him for one specification each of:
* being AWOL from his assigned unit from 11 – 30 October 1973
* escaping from the lawful custody of a noncommissioned officer on 30 October 1973
* being AWOL from his assigned unit from 30 October to 29 November 1973

8.  On 4 December 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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.

9.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the VA, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

10.  His immediate commander subsequently recommended approval of the applicant’s request for a discharge with an Undesirable Discharge Certificate.  The commander stated the applicant had a history of numerous incidents of a discreditable nature with both military and civilian authorities.  He was a chronic disciplinary problem and had no potential for rehabilitation.

11.  On 18 December 1973, his intermediate and senior commanders recommended approval of his request for discharge with an Undesirable Discharge Certificate.  

12.  The separation authority subsequently approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Undesirable Discharge Certificate.  On 17 January 1974, he was discharged accordingly. 

13.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of trial by court-martial (separation program number 246) under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He completed 2 years, 9 months, and 23 days of net active service with 63 days of time lost due to being AWOL.

14.  There is no evidence in the applicant's available record that shows he ever requested assistance from his command in dealing with any alcohol or drug related problems while serving on active duty. 

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

16.  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 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 to an individual who was discharged for the good of the service.

17.  Army Regulation 635-200, 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.

18.  Army Regulation 635-200, 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 evidence of record shows the applicant was 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 in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid trial by a court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

3.  His service in Vietnam is noted; however, his record of service shows he received NJP on four separate occasions for falling asleep on guard duty in Vietnam, and for being AWOL on three separate occasions.  

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

5.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or 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)                                         AR20120011520





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ABCMR Record of Proceedings (cont)                                         AR20120011520



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