IN THE CASE OF:	  

		BOARD DATE:	  2 June 2015

		DOCKET NUMBER:  AR20140015710


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 correction of his military records by upgrading his undesirable discharge to honorable.

2.  The applicant states an injustice occurred when he was discharged.  He contends that he was told it would be in his best interest and the Army's best interest to accept a reduction in grade and a discharge without any other punitive action, but it was not true.  This injustice was done without consideration for the time he served in the Republic of Vietnam (RVN).  He argues that the time he served in the RVN was honorable.  He was dedicated and accomplished his duties satisfactorily.  He was promoted to specialist four and received several awards and decorations.  He was not told he would be ineligible for Department of Veterans Affairs (VA) benefits.  He went to a VA medical center in Chicago, IL, to enroll for benefits where he was told that he was ineligible because of his under other than honorable conditions (UOTHC) characterization of service.

3.  The applicant provides copies of:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* A self-authored letter, dated 22 August 2014
* A letter of support from his spouse, dated 22 August 2014
* A letter of support from a retired Army command sergeant major (CSM), dated 22 August 2014



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 14 August 1969, the applicant enlisted in the Regular Army.  He completed training as a motor transport operator.

3.  On 8 December 1969, the applicant departed Fort Polk, Louisiana for duty in the RVN.

4.  On 17 January 1970, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 9 to 14 January 1970.

5.  The applicant arrived in the RVN on or about 20 January 1970 and performed duty as a truck driver and vehicle repairman in three different units.  On or about 10 December 1970, he departed the RVN.

6.  On 16 June 1971, the applicant accepted NJP for being AWOL from 5 April to on or about 10 June 1971.

7.  On 10 March 1972, the applicant was convicted by a special court-martial of being AWOL from on or about 16 August 1971 to 4 February 1972.

8.  On 2 November 1972, charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for violation of Article 86 (AWOL):

	a.  Specification I: AWOL from 9 May to 18 August 1972; and

	b.  Specification II: AWOL from 28 August to 25 October 1972.

9.  On or about 4 November 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.

10.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal 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 UCMJ, and that he could receive an undesirable discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

11.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

12.  In a statement, the applicant said he wanted to get out of the Army because it would be better than continuing to go AWOL.

13.  On 6 December 1972, the appropriate separation authority approved the applicant’s request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).

14.  On 14 December 1972, the applicant was discharged accordingly.  His 
DD Form 214 shows that he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  His service was characterized as UOTHC.  He completed 2 years, 3 months, and 3 days of creditable active duty service.  His awards included the RVN Campaign Medal with Device (1960) and the Vietnam Service Medal with three bronze service stars.

15.  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.

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

   a.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  An undesirable discharge was 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 (emphasis added), 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.

17.  The applicant provides a one-page letter of support, dated 22 August 2014, wherein he states that he was 19 years of age at the time of his service.  He went to the RVN and served with honor.  He believes he received a separation physical but was not evaluated for any mental problems.  He is a registered voter and a member of several charitable organizations.  He wants the characterization of his discharge changed so that he can apply for VA benefits.

18.  The applicant's spouse provides a one-page letter of support, dated 
22 August 2014, wherein she states that the applicant was never evaluated or seen by a doctor or other medical specialist to determine why he consistently went AWOL.  Instead, he was discharged for his errors and mistakes and released without any consideration for the horrible experiences he had during his service in the RVN.  She contends that the applicant's tour of duty in the RVN had a very devastating impact on him and she recognized a change in his attitude and behavior.  She request the injustice of his UOTHC be corrected by changing it to honorable.

19.  A retired Army CSM provides a one-page letter of support, dated 22 August 2014, appealing to this Board to give a favorable consideration to the applicant's request so that he may obtain VA medical benefits.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his military records should be corrected by upgrading his undesirable discharge to honorable because it was unjust and prevents him from receiving VA benefits.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  The available documentation indicates that all requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant has not provided sufficient documentary evidence showing that he was unjustly denied due process regarding his undesirable discharge.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant has not provided any documentary evidence showing that he was denied appropriate medical treatment while in the military or in conjunction with his separation processing.  Furthermore, he has not provided any medical or psychiatric documentation showing that he suffered or is suffering from any service-connected condition.

6.  The applicant's desire to obtain veterans medical benefits is not justification for an upgrade of an individual's discharge.

7.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant and honorable or a general 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)                                         AR20130021516



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ABCMR Record of Proceedings (cont)                                         AR20140015710



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