IN THE CASE OF:	  

		BOARD DATE:	  14 September 2013

		DOCKET NUMBER:  AR20130001343 


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.

2.  He states he would like to have his discharge upgraded so he may receive benefits from the Department of Veterans Affairs (VA) because he is homeless.  He fought for his country and his country's freedom in Vietnam.

3.  He provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 3 June 1968, the applicant enlisted in the Regular Army for a period of 3 years.  After completing initial entry training, he was awarded primary military occupational specialty 63C (General Vehicle Repairman).

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, as follows:

* 20 November 1968 – for failing to obey a lawful order and failing to go to his appointed place of duty
* 17 July 1969 – for sleeping on post
* 18 September 1969 – for being absent without leave (AWOL) from 31 August to 15 September 1969

4.  His records show he was credited with service in Vietnam from 10 October 1969 through the date of his discharge.

5.  A DA Form 268 (Report for Suspension of Favorable Personnel Actions), dated 26 January 1970, shows he was pending trial by special court-martial for possession of marijuana.  A second DA Form 268, authenticated on 21 March 1970, shows he was pending "resignation" for the good of the service in lieu of trial by special court-martial for possession of marijuana.

6.  The complete facts and circumstances of his discharge action are not in the available records.  However, his records include:

	a.  a memorandum from Headquarters, U.S. Army Personnel Center, Oakland, CA, dated 16 April 1970, subject:  Review of Discharge (Applicant), showing he acknowledged he was being issued an undesirable discharge and his right to request a review of his discharge by the Army Discharge Review Board (ADRB); and

	b.  a properly-constituted DD Form 214 showing he was discharged under other than honorable conditions for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations –  Enlisted Personnel), chapter 10, on 16 April 1970.

7.  The applicant's records document no acts of valor, significant achievement, or service warranting special recognition.

8.  There is no indication the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 currently 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 currently 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 does not support the applicant's request for an upgrade of his discharge.

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

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  He received nonjudicial punishment on three occasions, and he was charged with possession of marijuana while serving in Vietnam, an offense punishable under the UCMJ with a punitive discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130001343



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ABCMR Record of Proceedings (cont)                                         AR20130001343



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