IN THE CASE OF:	  

		BOARD DATE:	  22 September 2015

		DOCKET NUMBER:  AR20150002284 


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 undesirable discharge (UD).

2.  The applicant states:

a.  He should have his UD upgraded due to his traumatic experiences in 
Vietnam.

b. He has been employed and insured since 1975, but has not been able to
find employment since 2014, and he needs help with his medical issues.

c. In 1970, he was faced with either going to prison or joining the Army.  He
came from a small town in Indiana and had a very sheltered and protected life.

d. During basic training he completed his general educational development 
(GED) test and received his high school diploma.  He was transferred to Georgia for his military occupational specialty (MOS) training and he graduated in 1971.

e. During his tour in Vietnam, he began to experiment with drugs and 
became addicted due to the stress and effects of being in a war zone as a young man 19 years of age.  Upon his return to the U.S. he remain involved in drugs and went absent without leave (AWOL).

f.  After his separation from the military, he turned his life around, got
married, and raised a family.  Since then, he has built a successful civil engineering/land surveying company, employing 250 people.  He has gone to culinary arts and food and beverage management schools and has received degrees in both professions.  

3.  He provides:

* self-authored letter
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* his UD Certificate
* GED Certificate and Diploma

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 24 November 1970, the applicant enlisted in the Regular Army at age 18.  After completing initial entry training, he was awarded MOS 35L (Aviation Communication Equipment Repairman).  He served in Vietnam from 21 August 1971 to 20 August 1972.

3.  A DD Form 458 (Charge Sheet), dated 15 March 1973, shows he was charged with being AWOL from 25 April 1972 to 6 September 1972 and from 
10 October 1972 to 20 February 1973.

4.  On 23 February 1973, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum punishment authorized under the UCMJ, of the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.

5.  After consulting with counsel, he 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.
6.  He acknowledged he understood the elements of the offense he was charged with and he was:

* making the request of his own free will
* advised he may be furnished an UD Certificate
* advised he could submit statements in his own behalf 

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued a UD and he:

* would be deprived of many or all Army benefits
* may be ineligible for many or all veteran's benefits
* may be deprived of his rights and benefits as a veteran under both Federal and State laws

8.  He submitted a  statement in his own behalf.  He stated:

* it would save a lot of embarrassment on his part and save a lot of hassle for the Army if he would be allowed to be discharged
* he felt that if he was put into active duty again, he would probably go AWOL and do so until he received a discharge  
* he acknowledged the terms of a chapter 10 type of discharge but would still like to be granted this type of discharge

9.  On 23 March 1973, the separation authority approved the applicant's request and directed he be given a UD.  On 18 April 1973, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 1 year, 7 months, and 3 days of net active service this period with 292 days of lost time.

10.  The applicant provides documents to show he completed his GED, and a self-authored letter that states he became addicted to drugs due to the stress of being in combat in Vietnam which caused him to go AWOL.  He has provided no documentation to show he had an addiction.  He also states that he has since turned his life around by no longer using drugs, owning a company that employed 250 people, and being a productive member of society.  However, in 2014, he became unemployed and needs health benefits.

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

	a.  Chapter 10 of that regulation provides, in pertinent 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, a discharge under other than honorable conditions is 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, 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.  The ABCMR does not grant requests to upgrade discharges solely for the purpose of making applicants eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  He states he was young during his Army service.  He was 19 years of age when he was told he either had to go into the Army or go to prison.  There is no evidence that he was any less mature than Soldiers of the same age who successfully completed their military service, nor are there any documents that show he was ordered to enter the Army or go to prison.

3.  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's records show he was charged with an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout the discharge process.

4.  There is no evidence indicating that drug abuse contributed to his decision to go AWOL.  Even if drug abuse did contribute to his decision to go AWOL, it would not be a basis for upgrading his 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)                                         AR20140007657



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ABCMR Record of Proceedings (cont)                                         AR20150002284



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