IN THE CASE OF:

		BOARD DATE:  25 March 2014

		DOCKET NUMBER:  AR20130013458 


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, in effect, an upgrade of his undesirable discharge to general.

2.  The applicant states that after returning from his second Vietnam tour he was assigned to Fort Knox, Kentucky.  There a captain told him that it was "the new Army" and they had no use for men from Vietnam.  He could not cope or sleep and they told him to just go away.  This was after a first honorable discharge with subsequent reenlistment.  He is suffering from diabetes, depression, alcohol abuse, post-traumatic stress disorder, and feelings of inadequacy due to his treatment at Fort Knox.  He cannot get help from the Department of Veterans Affairs (VA) due to his discharge. 

3.  The applicant provides copies of:

* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 12 January 2012
* DD Forms 214 (Armed Forces of the United States Reports of Transfer or Discharge), dated 21 October 1969 and 13 April 1973
* Family Health Center of Harrison County prescription form
* notice of Social Security payments, dated 12 July 2011
* documents describing his current medical conditions



CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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.  The applicant enlisted in the Regular Army (RA) on 20 October 1967.  He reenlisted on 22 October 1969.

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 13 May 1968 to 29 July 1970 and from 19 March 1971 to 24 January 1972.

4.  His records show he accepted nonjudicial (NJP) punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 18 March 1971, for being absent without leave (AWOL) from 28 February to 17 March 1971
* 4 August 1971, for wrongfully acting in a drunk and disorderly manner

5.  The applicant's discharge processing documentation is not available for review.  His DD Form 214 shows, on 13 April 1973, he was administratively discharged, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 with an Undesirable Discharge Certificate.  He completed a total of 4 years, 11 months, and 15 days of active duty service with 190 days of lost time.

6.  Army Regulation 635-200 provides 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 was normally furnished to an individual who was discharged for the good of the service.

	b.  Paragraph 3-7b states 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.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances surrounding his discharge are not available for review.  However, his DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

2.  In the absence to evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations.

3.  The applicant's service and his current health problems have been noted but they do not demonstrate an injustice involving the discharge.

4.  The applicant has not shown any error, injustice, or inequity for the relief he requests.  Therefore, the applicant is not entitled to an upgrade of his discharge.

5.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  Granting veterans' benefits is not within the purview of the ABCMR and any questions regarding eligibility for healthcare and other benefits should be addressed to the VA.



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)                                         AR20100027085



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130013458



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1