IN THE CASE OF:  	  

		BOARD DATE:  9 June 2015	  

		DOCKET NUMBER:  AR20140019028 


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 under other than honorable conditions discharge.

2.  The applicant states he requested help on many occasions regarding how he was feeling.  He went for medical help but received none.  He was discharged with a less than honorable conditions characterization of service.  He had never been on drugs until he served in Vietnam.  This started then and there was no medical help.  Exposure to Agent Orange led to terminal illness and he now has liver cancer and heart disease.  He served in Germany and in Vietnam and he received awards for both.  

3.  The applicant does not provide any 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's records show he enlisted in the Regular Army on 28 June 1968 and held military occupational specialty 63C (Track Vehicle Mechanic).  He served in Germany from 14 January 1969 to 15 May 1970.  

3.  He was honorably discharged from active duty on 21 March 1969 for the purpose of reenlisting in the Regular Army.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he completed 8 months and 24 days of active service.  He was awarded or authorized the:

* National Defense Service Medal
* Sharpshooter Marksmanship Qualification Badge with Rifle Bar

4.  He reenlisted in the Regular Army on 22 March 1969.  After completion of his service in Germany, he served in Vietnam from on or about 19 July 1970 to 1 March 1971.  He was assigned to 79th Maintenance Company (Light).

5.  While in Vietnam, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on/for: 

* 30 September 1970, disobeying a lawful order to be on the truck located between two places at a specific time
* 26 October 1970, failing to obey a lawful order to wear his fatigues and failing to obey a lawful order to sign out of the company 

6.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain a DD Form 214 that shows he was discharged on 1 March 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions character of service.  This form also shows he completed 1 year, 11 months, and 10 days of creditable active service during this period. 

7.  Also on 1 March 1971, he was issued a memorandum advising him that he had received an undesirable discharge and that he could petition the Army Discharge Review Board for a review of his discharge. 

8.  There is no indication he petitioned the Army Discharge Review Board within 15 years of that board's statute of limitations. 

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	a.  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.

	b.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 1 March 1971 under the provisions of Army Regulation 635-200, chapter 10.

2.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200, required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provided no evidence that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service during his last enlistment.

3.  It appears the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  It also appears this misconduct rendered his service unsatisfactory.  In view of the foregoing, there is insufficient evidence to upgrade his discharge in this case. 

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)                                         AR20140019028





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ABCMR Record of Proceedings (cont)                                         AR20140019028



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