BOARD DATE:	  3 December 2013

		DOCKET NUMBER:  AR20130006497 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he signed his reenlistment believing it to be for 6 months active duty and it was actually for 6 years.  He paid back all of the variable reenlistment bonus (VRB) he received for reenlistment.  He was recently diagnosed with stage IV melanoma and he wants his discharge upgraded to receive medical benefits.

3.  The applicant provides:

* a letter from the 353rd Quartermaster Detachment (Parachutes), dated 
26 September 1969
* orders, dated 20 March 1971, awarding him the Air Medal with "V" device
* orders, dated 13 April 1971, awarding him the Army Commendation Medal
* orders, dated 2 September 1971, awarding him the Air Medal (3rd - 35th Award)
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 29 January 1981
* a letter, dated 18 March 2013, from Dr. S---------, MD

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.  In the processing of this case the ABCMR was unable to obtain the applicant's complete military personnel records.  However, there were sufficient documents in the available record for the Board to conduct a fair and impartial review of this case.

3.  On 23 December 1968, he enlisted in the Regular Army.  He served in Vietnam from 6 September 1970 to August 1971.  He was assigned to the
335th Aviation Company (Assault Helicopter).  He was promoted to specialist five (SP5)/E-5 on 15 February 1971.

4.  General Orders Number 2330, issued by Headquarters, 1st Aviation Brigade, dated 20 March 1971, awarded him the Air Medal with "V" Device for heroism in Vietnam on 15 January 1971 while engaged in aerial flight in connection with military operations against a hostile force.

5.  On 21 March 1971, he was honorably discharged for the purpose of immediate reenlistment.  On 22 March 1971, at Vinh Long, Vietnam, he reenlisted for a period of 6 years.  His reenlistment contract clearly shows on the front and back page that he reenlisted for 6 years.  He initialed the back page where it shows he reenlisted for 6 years.  He received a VRB lump sum payment of $8,000.00.

6.  Headquarters, 1st Aviation Brigade issued:

* General Orders Number 2922, dated 6 April 1971, awarding him the Air Medal with "V" Device (2nd Award) for heroism in Vietnam on 30 January 1971
* General Orders Number 3204, dated 13 April 1971, awarding him the Army Commendation Medal for meritorious achievement from 16 January 1971 to 16 March 1971
* General Orders Number 6149, dated 2 September 1971, awarding him the Air Medal (3rd - 35th Award) for meritorious achievement while participating in aerial flight from 12 October 1970 to 15 August 1971

7.  He departed his unit in an absent without leave (AWOL) status on
1 September 1971.  He surrendered to military authorities at Fort Knox, KY on
18 November 1980.

8.  On 19 November 1980, the applicant received a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and he had the mental capacity to understand and participate in proceedings.

9.  On 20 November 1980, court-martial charges were preferred against him for being AWOL from on or about 1 September 1971 until on or about 18 November 1980.

10.  On 21 November 1980, the applicant voluntarily 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.  He acknowledged he understood the offenses he was charged with and he was:

* making the request of his own free will and without coercion
* guilty of the offense for which he was charged
* afforded the opportunity to speak with counsel prior to making this request
* advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate

11.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all Department of Veterans Affairs (VA) benefits

12.  The applicant submitted a statement in his own behalf.  He stated his reasons for requesting a chapter 10 discharge were:

	a.  He had a bad ulcer and he was still taking medication prescribed by a doctor.  He felt his personal life was a total mess.  He described himself as a very nervous person and on edge all the time.  He felt he was totally incapable at any time for military service.

	b.  He had three children, ages 5, 3, and 5 1/2 months, and he had been working at a regular job for 4 years.  He could not afford to leave his wife and children and his job.  Their need for him in civilian life was greater than the Army's.

13.  On 16 December 1980, the appropriate authority approved the applicant's request for discharge for the good of the service, directed the applicant be reduced to private (PV1)/E-1, and directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

14.  On 29 January 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He completed 7 months and 21 days of net active service this period that was characterized as under other than honorable conditions.  He had 2,190 days of time lost prior to the expiration of his term of service (ETS) and 1,171 days time lost after normal ETS.

15.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

16.  The applicant provided a letter, dated 18 March 2013, from Dr. S---------, Hinsdale Oncology Associates in Oak Lawn, IL.  The doctor confirmed the applicant is his patient and has stage IV melanoma.

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 1-13a 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 1-13b 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 Air Medals for heroism and Army Commendation Medal were noted.  However, these decorations were awarded for actions and service that occurred prior to 22 March 1971, the date of his reenlistment.  He received an honorable discharge for that period of service.

2.  His award of the Air Medal (3rd - 35th Awards) for meritorious service that includes a period (22 March - 15 August 1970) after his reenlistment was noted. However, it was not considered sufficiently mitigating to justify an upgrade of the voluntary discharge requested by the applicant.

3.  The applicant contends he thought he was signing for an additional 6 months of active duty service when he reenlisted.  However, it is not reasonable to conclude that the Army would have paid a Soldier an $8,000.00 reenlistment bonus for only an additional 6-month commitment.  Further, his reenlistment contract clearly showed in two areas that he reenlisted for 6 years, not 6 months, and initialed one of those areas.

4.  He voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits.  He also acknowledged that he had been advised and he understood he may be ineligible for many or all benefits administered by the VA.

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no evidence of procedural or other errors that would have jeopardized his rights.

7.  The letter he submitted from his doctor was noted.  However, there is no evidence his current medical condition has any bearing on the type of discharge and the reason for his separation over 30 years ago.

8.  He failed to complete the term of service he had contracted for and he had 2,190 days of time lost.  Therefore, his final period of service is unsatisfactory.

9.  The applicant's expressed need to obtain health care is noted.  However, the ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for benefits.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for treatment and other benefits should be addressed to the VA.

10.  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 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)                                         AR20130006497



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ABCMR Record of Proceedings (cont)                                         AR20130006497



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