IN THE CASE OF:	  

		BOARD DATE:	  26 March 2015

		DOCKET NUMBER:  AR20150002003 


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 to a general or honorable discharge.

2.  The applicant states that he served his country well in Vietnam and was awarded the Combat Infantryman Badge.  He goes on to state that he was court-martialed and does not even know what he was court-martialed for.  He also states that he was awaiting a medical discharge due to his heart condition and that was being totally ignored.  Additionally, his discharge is preventing him from receiving Department of Veterans Affairs (VA) benefits for his heart condition that was discovered while in the Army.

3.  The applicant provides a two-page statement explaining his application and copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), enlistment contract, Enlisted Qualification Record (DA Form 20), one record of nonjudicial punishment, reassignment orders and medical records.

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 enlisted in the Regular Army on 24 February 1969 for a period of 3 years.  He completed his basic training at Fort Gordon, Georgia and his advanced individual training as an infantryman at Fort McClellan, Alabama before being transferred to Vietnam on 2 August 1969.

3.  On 1 January 1970, he was medically evacuated to a hospital at Camp Zama, Japan for an injury to his left knee.  He was also diagnosed while at Camp Zama as having a mild aortic insufficiency, probably rheumatic, no treatment required. 

4.  On 12 March 1970, he was transferred to Wright-Patterson Air Force Base, Ohio to be evaluated for his aortic insufficiency.  It was determined that he should be evaluated by a medical evaluation board (MEB) and that he should be transferred to an Army medical facility.  Accordingly, he was transferred to the hospital at Fort Knox, Kentucky on 23 March 1970.  On 2 April 1970, he was transferred to the Valley Forge General Hospital in Pennsylvania for treatment and it appears that a determination was made that he did not require evaluation by an MEB.

5.  On 21 May 1970, he was returned to duty and transferred to Fort Hood, Texas for assignment to an infantry company. 

6.  On 21 August and 6 November 1970, nonjudicial punishment was imposed against the applicant for failure to go to his place of duty.

7.  On 9 February 1971, the applicant’s commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant’s disciplinary record, that his military appearance, bearing, and maintenance of his equipment were below standards, and that his conduct and efficiency were unsatisfactory.  The applicant declined to submit a statement in his own behalf.  The appropriate authority approved the bar to reenlistment on 18 February 1971.

8.  The applicant underwent a medical/physical examination on 11 May 1971 and was deemed fit for separation.

9.  The facts and circumstances surrounding the applicant’s administrative discharge are not available for review by the Board as they were loaned to the VA in Cleveland, Ohio in 1971.  However, his records do contain a duly authenticated DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 17 June 1971 under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court martial.  He had served 2 years, 2 months and 20 days of active service and had 35 days of lost time.  His records also show that he was advised of the procedures for applying to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and acknowledged by his signature that he was so advised.

10.  There is no evidence in the available records to show that he applied to the ADRB for an upgrade of his discharge within that board’s 15-year statute of limitations.

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

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in part, 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 an undesirable discharge was considered appropriate at the time.

	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.  
 
DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation 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 regulations.  

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant would have voluntarily requested discharge for the good of the service in hope of avoiding a punitive discharge and having a felony conviction on his record.  

3.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

4.  Likewise, without the facts and circumstances surrounding his discharge, it cannot be determined if his service is deserving of an upgrade of his discharge.

5.  Accordingly, there appears to be no basis for granting the applicant an 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)                                         AR20150002003





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ABCMR Record of Proceedings (cont)                                         AR20150002003



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