BOARD DATE:	  4 September 2014

		DOCKET NUMBER:  AR20140001993 


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 that his undesirable discharge be upgraded.  

2.  The applicant states during his tour at Fort Bragg, NC, he was confronted with homosexual actions by the mess sergeant.  He was afraid of what could happen so he went absent without leave (AWOL).  He was wounded in action while serving in Vietnam and that as a result of his actions he is banned from receiving health care through the Department of Veterans Affairs (VA).  Due to the injuries he sustained, his quality of life has been altered.  He is unable to work and he was diagnosed with a mental condition.  He is requesting the upgrade of his discharge based on his honorable service while in a combat environment and in order to qualify for VA benefits.  

3.  The applicant did not provide 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.  The applicant was inducted into the Army of the United States on 26 April 1971.  On 29 February 1972, he enlisted in the Regular Army for a period of 3 years.  

3.  His DA Form 20 (Enlisted Qualification Record) shows he arrived in Vietnam on 30 April 1972.  

4.  He accepted nonjudicial punishment (NJP) on 10 July 1972 for disobeying a lawful order issued by Headquarters, Military Assistance Command, Vietnam (MACV) and on 28 September 1972 for disobeying a lawful general directive issued by MACV.  

5.  He departed Vietnam on 30 March 1973.  

6.  His DA Form 20 also shows he was AWOL during the periods 1 March-2 May 1974 and 5 June-28 July 1974.  

7.  On 9 August 1974, court-martial charges were preferred against him for the AWOL offenses.

8.  On 9 August 1974, he consulted with legal counsel and 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 – Enlisted Personnel), chapter 10, due to charges preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

9.  He acknowledged in his request that he could be discharged under other than honorable conditions and that he could be ineligible for many or all benefits administered by the VA, he could be deprived of many or all Army benefits, and he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He further acknowledged he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He elected not to submit a statement in his own behalf.

10.  On 29 August 1974, the separation authority approved his request for discharge and directed his reduction to private/E-1 and issuance of an Undesirable Discharge Certificate.  On 6 September 1974, he was discharged accordingly.  His DD Form 214 for this period of service shows he accrued 117 days of lost time and his service was characterized as under other than honorable conditions.

11.  There is no evidence in his military records that shows he was a victim of sexual harassment or evidence indicating that some form of harassment was the proximate cause of his AWOL offenses.  

12.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

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

	a.  Chapter 10, 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, the 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.  Paragraph 3-7a states 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his undesirable discharge should be upgraded based on his service in Vietnam and in order to become eligible to obtain benefits from the VA has been carefully considered.  However, the ABCMR does not upgrade discharges for the sole purpose of making an individual eligible for VA benefits.

2.  The available evidence shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The records show that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  His voluntary request for discharge 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 laws and regulations. There is no indication the request was made under coercion or duress.

4.  His service in Vietnam was noted; however, his record of indiscipline includes NJP on two occasions, court-martial charges for being AWOL, and 117 days of lost time.  Based on this record of indiscipline and in view of the fact that he voluntarily requested discharge to avoid a trial by court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  He contends that he departed AWOL because he was confronted with homosexual actions by a sergeant; however, there is no evidence in his military records that support his contention.  He did not raise this contention when he requested discharge.

6.  Based on the foregoing, there is no basis to grant the applicant's requested relief.  

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)                                         AR20140001993



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ABCMR Record of Proceedings (cont)                                         AR20140001993



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