IN THE CASE OF:	  

		BOARD DATE:	  11 June 2015

		DOCKET NUMBER:  AR20140018375 


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, reconsideration of his previous request for an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he left due to extreme family hardship.  His wife left him with two young daughters and no one to care for them.  He is getting older and he is disabled.  He requests an upgrade of his discharge to help him qualify for Department of Veterans Affairs (VA) benefits.  He further states he has two periods of service, the first period was honorable; however, not all of his second period of service was bad.

3.  The applicant provides:

* a self-authored statement
* a letter from the VA

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20110011751, on 22 December 2011.

2.  During the original deliberations in this case the Board denied the applicant's request for an upgrade of his undesirable discharge to a general discharge.  The applicant did not provide any new evidence; however, he provides a new argument as stated above that was not previously reviewed and warrants consideration by the Board.

3.  Having prior enlisted service in the Army National Guard, the applicant enlisted in the Regular Army (RA) on 8 March 1968.  His records contain a      DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was honorably discharged on 10 August 1969 for immediate reenlistment.  

4.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam with Headquarters and Headquarters Battery, Division Artillery, 1st Cavalry Division (Air Mobile) for the period 11 August 1968 to           8 October 1969.  The applicant's awards and decorations for his service in Vietnam include the Air Medal, the Army Commendation Medal with "V" Device, and the Bronze Star Medal.

5.  His record contains Special Court-Martial Order Number 65, issued by Headquarters Division Artillery, 2d Armored Division, dated 14 September 1970, which shows while serving in the rank/grade of sergeant/E-5, he pled not guilty and was found guilty of violating Article 86 of the Uniform Code of Military Justice for without authority, absenting himself from his organization at Fort Hood, TX, for the period 1 April to 15 July 1970.  

6.  On 24 August 1970, the following sentence was adjudged:  to be reduced to the rank/grade of private first class/E-3; to forfeit $50.00 pay per month for           4 months; to be restricted for 60 days, and to perform extra duty for 60 days.  On 14 September 1970, the sentence was approved and was duly executed.

7.  Item 38 (Record of Assignments) of the applicant's DA Form 20 indicates he was dropped from the rolls for desertion on 6 September 1971.

8.  His discharge packet is not available for review; however, his record contains a duly constituted DD Form 214 that shows he was discharged on 3 November 1971 after completing 5 years, 11 months, and 27 days of total active military service with 140 days of lost time.  This form shows he was issued a separation program number of "246," which denotes he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service.  It also shows his service was characterized as under other than honorable conditions.

9.  The applicant provides a 3-page statement which he appears to have submitted to the VA as part of a previous claim.  In response to a letter, he opted to submit an appeal on camera with a representative from the VA.  He went to the VA Regional Office in Montgomery, AL, on 7 October 2014.  The representative called him back and told him that he did not see where he had ever filed any claims (presumably with the VA), so the representative typed a letter to change his discharge to a general discharge.  The applicant states, in effect:

   a.  After completing basic combat and advanced individual training while a member of the Army National Guard, he joined the Regular Army because he intended to make it his career.

   b.  Upon arriving in Vietnam he was assigned to Troop D, 1st Battalion,       9th Air Cavalry Regiment, as a forward observer.  He had no idea what he was doing; however, he had a good officer in charge of the blue platoon who helped him a lot.
   
   c.  They were up next to go to the Demilitarized Zone and would be sent by helicopter to the area to see how the agent orange affected the foliage; however, they would find that it would still be wet from where they had sprayed.  When he first filed for VA benefits he was turned down because they said they did not have any record of his exposure to Agent Orange.  
   
   d.  Later, he and his family found an apartment in Temple, TX.  They had not been there very long and one day his wife wanted to use the car to go shopping.  When he returned home he found she had gone back to Alabama.  The longer he sat in an empty apartment the more afraid he became.  He hitchhiked to her parents house, tried to put his marriage back together, and cut wood with her father while trying to return to Fort Hood, TX.
   
   e.  After a few weeks, he realized getting back together with his wife was not going to happen and he asked his in-laws if they would take care of his girls.  They agreed and he hitchhiked to Fort Rucker, AL to turn himself in to military authorities.  He was subsequently transferred to Fort Benning, GA to determine whether he would receive a court-martial or be discharged for the good of the service.  
   
   f.  The officer in charge explained the discharge for the good of the service and explained to him  that he would have to write a letter telling how bad he hated the service and that he used drugs.  The applicant states he has never used drugs.
   
10.  Army Regulation 635-200 sets forth 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 Veterans Administration 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.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The ABCMR 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's contentions are noted; however, the evidence of record does not support his request for reconsideration of an upgrade of his discharge.

2.  The complete facts and circumstances surrounding the applicant's discharge are not available for review; however, it is reasonable to presume court-martial charges were preferred against him for being absent without leave (AWOL) and the applicant subsequently elected to be discharged in lieu of trial by court-martial.

3.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though his records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.  It is also presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  

5.  His discharge appears appropriate because the quality of his service was not consistent with Army standards of acceptable personal conduct and performance of duty by military personnel.  The evidence appears to show he was AWOL on more than one occasion with a total of 140 days lost time.  Therefore, based on his record of indiscipline, his service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to a general discharge.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veterans' benefits is not within the purview of the ABCMR.  Therefore, any questions regarding eligibility for health care 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 that the overall merits of this case are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20110011751, dated 22 December 2011.




      _______ _   _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)                                         AR20140018375





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ABCMR Record of Proceedings (cont)                                         AR20140018375



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