BOARD DATE:	  24 June 2014

		DOCKET NUMBER:  AR20130019344 


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 (UD) to honorable.

2.  The applicant states that after failing his physical twice in 1968 because of calluses on the bottom of his feet, the doctor felt 2 years in the Army would make a man out of him.  His draft status was changed from 1Y to 1A and he was subsequently sent to Vietnam.  He was assigned for duty as a helicopter scout with the 11th Armored Cavalry Regiment.  He was exposed to Agent Orange.  He was given a UD after returning from Vietnam.  He became a recluse and in 2001 he was diagnosed as having post-traumatic stress disorder (PTSD).  He has not received his benefits.

3.  The applicant provides no additional evidence.

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 19 August 1968, the applicant enlisted in the Regular Army.  He completed basic combating training and was sent to Aberdeen Proving Ground, Maryland, for advanced individual training as an aircraft armament repairer.

3.  On 9 May 1969, the applicant was advanced to the rank of specialist four/pay grade E-4.

4.  On 14 May 1969, the applicant accepted nonjudicial punishment (NJP) for failing to go to his place of duty at the appointed time on two occasions.

5.  On 14 May 1969, the applicant departed Aberdeen Proving Ground for duty in the Republic of Vietnam (RVN).

	a.  On 26 June 1969, he was assigned to the Air Cavalry Troop, 11th Armored Cavalry Regiment, as a senior aircraft armorer.

	b.  On 1 February 1970, he was assigned as a scout gunner.

	c.  On 9 June 1970, he was promoted to the rank of specialist five/pay grade E-5.

	d.  In 1970, he was awarded the Air Medal and the Army Commendation Medal.

	e.  On 18 June 1970, he departed the RVN and returned to the United States.

6.  On 27 June 1970, the applicant was assigned as an instructor at Aberdeen Proving Ground, MD.

7.  The applicant was absent without leave (AWOL) during the following two periods:

* 3 November to 7 December 1970 (35 days)
* 11 January 1971 to 12 November 1972 (682 days)

8.  The available records do not contain any charge sheets or other documents pertaining to his AWOL.

9.  On 20 November 1972, the applicant signed a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, he could receive a UD which would deprive him of many or all of his benefits as a veteran, he could expect to experience substantial prejudice in civilian life if he received a UD.

10.  On or about 20 November 1972, the applicant consulted with counsel and was advised of his rights and options.

11.  The applicant's complete discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was administratively discharged for the good of the service on 18 December 1972 under the provisions of Army Regulation 600-200, chapter 10.  His service was characterized as under conditions other than honorable.  He completed 2 years and 5 months of creditable active duty service and had a total of 717 days of lost time.

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

13.  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 at any time after the charges have been preferred.  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.  

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides that the Board begins its 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 applicant contends that his UD should be upgraded because he became a recluse after he was discharged, he was diagnosed as having PTSD, and he has not been able to get his benefits.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The evidence of record shows the applicant accepted one NJP prior to serving in the RVN for not reporting for duty on two occasions.  While in the RVN, he was promoted to specialist five and received two personal decorations.  His service was of such significance that he was assigned for duty as an instructor at Aberdeen Proving Ground when he returned from the RVN.  This evidence clearly shows he knew how to soldier and could do so.  However, soon after his return from the RVN he was AWOL for almost 2 years.  This lengthy absence and his earlier misconduct greatly diminished the overall quality of his service.

4.  The applicant's desire to obtain veterans' benefits is not justification for an upgrade of his discharge.

5.  There is no evidence of error or injustice in the applicant's case.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130019344



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ABCMR Record of Proceedings (cont)                                         AR20130019344



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