BOARD DATE:	  19 February 2014

		DOCKET NUMBER:  AR20130009035 


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 undesirable discharge to a general discharge.

2.  The applicant states he had just returned from Vietnam and he had a difficult time adjusting.  He feels if he had received proper treatment for post-traumatic stress disorder he would have adjusted and remained in the Army.  He adds that he is applying for Department of Veterans Affairs' (VA) benefits.

3.  The applicant 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 25 March 1968, the applicant enlisted in the Regular Army.  He completed training and he was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  The highest rank he held was specialist four/pay grade E-4.

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

* 30 May 1969 – while in Vietnam, wrongfully transporting local nationals without written authorization and wrongfully appropriating a 2 1/2-ton truck
* 14 January 1970 – for failing to go at the time prescribed to his appointed place of duty
* 6 February 1970 – for being absent without leave (AWOL) from 19 to 27 January 1970 and from 28 to 31 January 1970
* 18 February 1970 – for behaving himself with disrespect toward a superior commissioned officer

4.  A DD Form 458 (Charge Sheet), dated August 1971, shows court-martial charges were preferred against the applicant for being AWOL from his unit during the periods:

* 9 – 19 April 1971
* 19 April – 24 May 1971
* 10 June – 29 July 1971
 
5.  On 4 August 1971, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He acknowledged he had not been subjected to coercion with respect to his request for discharge and he had been advised of the implications that were attached to his request.

	a.  He further acknowledged he understood that if his request for discharge was accepted he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the VA, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

	b.  He elected not to submit a statement on his own behalf.

	c.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel and was advised of the basis for his contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.  He waived his rights in conjunction with this consultation.

6.  On 27 August 1971, the separation authority approved the applicant’s request for discharge and directed that he be given an Undesirable Discharge Certificate.

7.  On 1 September 1971, he was discharged for the good of the service under the provisions of chapter 10, Army Regulation 635-200, with his service characterized as under other than honorable conditions.  He was issued an Undesirable Discharge Certificate.  His DD Form 214 shows he completed 2 years, 11 months and 3 days of net active service with 92 days of time lost under Title 10 U.S. Code, section 972 and 94 days of time lost subsequent to normal expiration term of service date.  This form also shows he served in Vietnam from 3 November 1968 – 26 October 1969.

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

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

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, 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.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was 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.  He voluntarily requested discharge from the Army under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  He received nonjudicial punishment on four occasions, and he was charged with being AWOL from his unit.  He had 92 days of time lost prior to his normal expiration term of service date.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

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

5.  In view of the foregoing, there is no basis for granting the applicant a general discharge or an honorable 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)                                         AR20130009035



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ABCMR Record of Proceedings (cont)                                         AR20130009035



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