IN THE CASE OF:	  

		BOARD DATE:	  23 April 2013

		DOCKET NUMBER:  AR20120017141 


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 discharge under other than honorable conditions (UOTHC) to honorable.

2.  The applicant states:

* he was given the wrong information by his military lawyer
* he was young and fighting for his country
* he was afraid of not receiving a fair trial
* he was young and away from home and made mistakes like many other young men in Vietnam
* he needs veterans' benefits for serving his country

3.  The applicant provides no additional 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.  The applicant was born on 19 May 1950 and he was inducted into the Army of the United States on 18 March 1970 at almost 20 years of age.  He completed training and was awarded military occupational specialty 64A (Light Vehicle Driver).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on:

* 29 August 1970, for being absent without leave (AWOL) on 27 August 1970 and failing to go to his appointed place of duty at the prescribed time on 28 August 1970
* 11 November 1970, for being AWOL and failing to obey a lawful regulation on 9 November 1970
* 6 February 1971, for failing to go to his appointed place of duty at the prescribed time on 3 February 1971
* 1 April 1971, for driving a military vehicle over the prescribed speed limit on 13 March 1971
* 1 August 1971, for improperly wearing the military uniform on 20 July 1971

4.  Two DD Forms 458 (Charge Sheet), dated 20 May 1971 and 10 July 1971, show the applicant was charged with:

* disobeying a lawful order
* sleeping on post
* failing to go to his appointed place of duty at the prescribed time
* being in an off-limits area
* riding as a passenger on a Vietnamese owned and operated motor vehicle
* possessing marijuana
* possessing heroin

5.  Following counseling on 7 August 1971, the applicant submitted a voluntary request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, the applicant acknowledged he understood he was admitting guilt to the charges against him or to lesser-included offenses that also authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged he understood that if his request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 6 September 1971, the applicant underwent a mental status evaluation.  His evaluation shows he had no mental disorders and had the mental capacity to understand and participate in board proceedings.

7.  On 15 September 1971, the separation authority (a major general) approved the applicant's request.  He directed the applicant's discharge, reduction to the lowest enlisted grade, and receipt of an Undesirable Discharge Certificate.

8.  On 29 September 1971, the applicant was discharged accordingly.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 1 year, 6 months, and 12 days of total active service.

9.  On 9 August 1973, after careful consideration of the applicant's military records and all other available evidence, the Army Discharge Review Board determined he was properly discharged and denied his request for a change in the type and nature of his discharge.

10.  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, 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.  An Undesirable Discharge Certificate would normally be furnished to 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 request for an upgrade of his discharge UOTHC to honorable was carefully considered.

2.  The applicant's record shows he 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.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His record shows he was almost 20 years of age when he enlisted.  There is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for benefits should be addressed to the VA.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20120017141



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ABCMR Record of Proceedings (cont)                                         AR20120017141



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