IN THE CASE OF:	  

		BOARD DATE:	  18 February 2014

		DOCKET NUMBER:  AR20130009584 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that during his second enlistment he was discharged due to failure to adapt to military life (absent without leave (AWOL)).  He contends that his previous honorable service or the fact that he received the Purple Heart for a gunshot wound to the head were not given appropriate consideration when determining the characterization of his service.  This injury caused him to have mental health problems that were later determined by the Department of Veterans of Affairs (VA) to be service connected.

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), effective 11 October 1968
* DD Form 214 (Report of Separation from Active Duty), effective 
7 February 1975 
* VA Rating Decision, dated 23 July 2010

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 12 October 1966, the applicant was inducted into the Army of the United States.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman) and he was subsequently assigned to the Republic of Vietnam (RVN) from on or about 4 April 1967 to on or about 30 March 1968.  

3.  Upon his return from RVN he was assigned to Fort Hood, TX and reenlisted on 31 May 1974.

4.  A DD Form 458 (Charge Sheet), dated 10 December 1974, shows he was charged with:

* failing to go to his appointed place of duty
* disobeying the a lawful command from a superior commissioned officer
* disobeying a lawful order from his superior noncommissioned officer

5.  On 16 December 1974, after consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged that he understood he could request a discharge for the good of the service because a charge had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

	b.  He acknowledged:

* he was guilty of the charge against him or a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation as he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions as a result of his request
* he had been advised of and understood the possible effects of an under other than honorable conditions discharge 
* as the result of such a discharge, he would be deprived of many or all benefits administered by the Veteran's Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	c.  The applicant submitted a statement in which he acknowledged that he wanted to pursue a career in the Life Insurance Business.  He was unable to function as a Soldier and he could no longer tolerate being in the Army; therefore, a discharge was in the best interest of all parties.

6.  On 18 December 1974, the applicant's commander recommended he be discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10.  He noted that the applicant had been punished under Article15, Uniformed Code of Military Justice (UCMJ),and his counseling record reflected a pattern of shirking, substandard performance, and poor attitude toward military service.

7.  On 27 December 1974, the separation authority approved the applicant's request for separation and directed he receive an undesirable discharge certificate and that he be reduced to the grade of private (E-1).  On 7 February 1975, he was discharged accordingly.

8.  He was awarded the Purple Heart for a head laceration sustained in RVN and the Combat Infantryman Badge.

9.   He provides his VA rating decision which shows that his service connected disabilities were rated as follows:

* Schizophrenia, paranoid type, and Post Traumatic Stress Disorder, 50-percent
* Residuals of a gunshot wound to the head, 10-percent

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 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 available evidence does not support the applicant's request for an upgrade of his discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The record shows he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.

3.  The award of the Purple Heart and a prior period of honorable service are noteworthy achievements; however, such achievements are an insufficient basis for upgrading a properly-issued discharge. 

4.  There is no documentary evidence of sufficiently mitigating circumstances related to his indiscipline that would warrant changing the characterization of his service. 


________  ________  ________  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)                                         AR20130009584





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130009584



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1