IN THE CASE OF:	  

		BOARD DATE:  22 October 2013

		DOCKET NUMBER:  AR20130005029 


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 reconsideration of his earlier request for upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

	a.  he does not believe he was absent without leave (AWOL) on 22 July 1969; but contends that he was either late to roll call, or failed to speak up at roll call;

	b.  even though his time in Vietnam was short, he did serve his country by working as a carpenter, serving as fire watch, and by searching for mines;

	c.  he believes he was at Fort Benjamin Harrison, IN on 9 August 1970, where he served for 5 or 6 months after receiving a compassionate reassignment;

	d.  he is not seeking back pay, but he is seeking benefits from the Department of Veterans Affairs (VA);

	e.  his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) states benefits of honorable discharge;

	f.  he was sent from Fort Benjamin Harrison to Korea where he was contacted by the Red Cross concerning his sister and he was allowed to return home;


	g.  had he been allowed to return to either Vietnam or Korea, his time in the service would have turned out differently;

	h.  he lost pay because of a loss of records, but he is not seeking to collect any money; he only wants his characterization changed to "general"; and

	i.  he knows his conduct was not desirable, but he did serve overseas and had completed 1 year, 9 months, and 28 days of good time.

3.  The applicant provides the original Army Board for Correction of Military Records (ABCMR) Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20120007045, on 27 September 2012.

2.  The applicant has not provided any new documentary evidence.  Furthermore, his simple disagreement with the evidence of record and implication that the subsequent Board decision was in error is also not considered new evidence.  However, in the interest of justice and to provide clarity for the applicant, the Board should consider his comments and arguments.

3.  The original ROP stated:

	a.  The applicant contended his service in Vietnam was without incident and his issues had not begun until after his return from Vietnam and subsequent reassignment to Korea.  Those issues were compounded by his inability to financially support his family because he was not receiving his military pay.  However, there was no evidence of record showing that his pay had been stopped or that he had issues with receiving his pay.

	b.  The applicant contended he was entitled to a general discharge because he had no issues with drugs or alcohol.  His only problem was his periods of AWOL.  The applicant's AWOL occurred both before his service in Vietnam and throughout his service.  Accordingly, the Board determined he was properly and equitably discharged in accordance with the regulatory provisions under which he had voluntarily requested to be separated.


4.  A review of the applicant's records with respect to the concerns he raises in his request for reconsideration shows:

	a.  he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 23 July 1969 for being AWOL from 0600 hours to 1700 hours on 22 July 1969 while in basic combat training at Fort Knox, KY;

	b.  he served in Vietnam from on or about 31 October 1969 to 18 January 1970;

	c.  he accepted NJP under Article 15, UCMJ on 9 August 1970 for being AWOL from 26 July to 5 August 1970 from the U.S. Army Overseas Replacement Station, Fort Lewis, WA.

	d.  he served in the ROK from on or about 23 August to 12 September 1970;

	e.  he accepted NJP under Article 15, UCMJ at Fort Leonard Wood, MO on
21 April 1971 for being AWOL from his unit in Korea from on or about
28 November 1970 to 17 January 1971; and from his unit at Fort Leonard Wood, MO from on or about 10 to 23 March 1971; and

	f.  he was AWOL from 3 May to 2 November 1971 and again from
8 November 1971 to 17 May 1972, when he was apprehended by civilian authorities and returned to military control.

5.  He was discharged from Fort Leonard Wood, MO on 8 June 1972 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.  He completed 1 year, 9 months, and 28 days of total active service.  He was issued an Undesirable Discharge Certificate.

6.  The DD Form 214 he was issued at the time shows he accrued 93 days of time lost prior to his normal expiration of term of service (ETS), with an additional 343 days of time lost subsequent to his normal ETS.  It further shows in item 25 (Education and Training Completed) he received mandatory training on:

* UCMJ
* Army Training Program (ATP)
* benefits of an honorable discharge
* code of conduct


7.  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, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration (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 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.

8.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his undesirable discharge should be upgraded to a general discharge because he served overseas and completed 1 year, 9 months, and 28 days of total active service.

2.  The applicant argues that he does not believe he was AWOL on certain dates mentioned in the original ROP.  He also states his DD Form 214 indicates he has benefits of an honorable discharge, which is the purpose of his request.


3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The evidence of record clearly shows he was AWOL for 436 days (93 days prior to his ETS and 343 days after his normal ETS).  This excessive period of absence more than outweighs any beneficial consideration that might be given for his short 3-month tour in Vietnam and 1 month in Korea.

5.  The applicant's contention that his DD Form 214 states he is entitled to the benefits of an honorable discharge is without merit.  The entry to which he refers is meant only to inform the reader that the applicant had received mandatory training on the subject of such benefits.

6.  The applicant argues that had he been permitted to return to either Vietnam or Korea, his service would have been different.  However, he does not offer any convincing discussion as to why he thinks his conduct would have been any different in either of those locations.  The evidence shows his problems started while he was still in basic combat training and continued throughout the length of his service.

7.  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.  Additionally, the granting of veteran's benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care and other benefits should be addressed to the VA.

8.  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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20120007045, dated 27 September 2012.



      _______ _  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)                                         AR20130005029



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ABCMR Record of Proceedings (cont)                                         AR20130005029



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