RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 23 August 2005 DOCKET NUMBER: AR20050001538 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Mr. Carl W. S. Chun Director Mr. John J. Wendland, Jr. Analyst The following members, a quorum, were present: Ms. Kathleen A. Newman Chairperson Mr. William D. Powers Member Ms. Marla J.N. Troup Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests, in effect, that his discharge under conditions other than honorable be upgraded. 2. The applicant states, in effect, that he served his country to the best of his capacity, but was forced to accept an undesirable discharge without benefit of counsel. 3. The applicant concludes, in effect, that he suffers from a number of illnesses that are the result of his military service and that he has no (medical) benefits. 4. The applicant provides copies of his two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) and 23 pages of medical documents. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 29 June 1973, the date of his discharge from active duty. The application submitted in this case is dated 18 November 2004. 2. 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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file. 3. The applicant’s records show that he enlisted on 30 November 1968. He completed basic combat training and advanced individual training and was awarded military occupational specialty 67Y (AH-16 Helicopter Repairman). 4. The applicant’s records show that he served 26 months in the Republic of Vietnam (RVN), from 18 July 1969 through 21 September 1971. He was awarded an Army Commendation Medal for meritorious achievement for the period 1 August to 31 December 1969. The applicant was discharged under honorable conditions and issued a DD Form 214, on 15 May 1971, after serving 02 years, 05 months, and 16 days of honorable service. 5. On 16 May 1971, the applicant immediately reenlisted in the U.S. Army, for 6 years. 6. On 17 September 1971, the applicant accepted nonjudicial punishment for the possession of six plastic vials suspected of being heroin. His imposed punishment was reduction to the pay grade E-4. 7. A DA Form 3545 (Deserter Wanted by the Armed Forces), dated 23 February 1972, shows the applicant went absent without leave (AWOL) on 20 December 1971 and was subsequently dropped from the rolls on 22 February 1972. 8. Headquarters, 82nd Airborne Division, Special Orders Number 46, dated 3 March 1972, shows the applicant was returned to military control on 25 February 1972. 9. On 21 March 1972, the applicant accepted nonjudicial punishment for being AWOL from 20 December 1971 until 25 February 1972; for failing to report to his appointed place of duty on four separate occasions; and failure to obey a lawful order. His imposed punishment was reduction to the rank of specialist four/pay grade E-4. 10. On 7 August 1972, the applicant accepted nonjudicial punishment for failing to report to his appointed place of duty. His imposed punishment was 14 days extra duty and seven days restriction to the barracks. 11. A DA Form 3545, dated 12 September 1972, shows the applicant went AWOL on 8 September 1972 and was dropped from the rolls on 12 September 1972. 12. A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows the applicant surrendered to military authorities on 1 October 1972. 13. On 14 November 1972, the applicant was convicted by a special court-martial of failing to report to his appointed place of duty and being AWOL for the period of 1 September 1972 through 1 October 1972. His punishment was reduction to the rank of private/pay grade E-1, forfeiture of $50.00 pay per month for 6 months, 45 days extra duty, and 45 days restriction. 14. On 17 November 1972, the applicant accepted nonjudicial for twice failing to report to his appointed place of duty at the prescribed dates and times. His punishment was 30 days restriction and 30 days extra duty. 15. A DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 20 November 1972, shows the applicant was reported AWOL from his unit, effective 17 November 1972. 16. A DA Form 188 (Extract Copy of Morning Report), dated 20 November 1972, shows the applicant’s duty status as AWOL, beginning 17 November 1972, and that he was dropped from the rolls of the organization on 17 November 1972. 17. A Federal Bureau of Investigation letter, dated 29 May 1973, shows that the applicant was apprehended by civilian authorities, returned to military control, and confined at the Armed Forces Police Detachment, Washington Navy Yard, Washington, DC. The record indicates the applicant stated that he would desert from the U.S. Army again, if the opportunity presents itself. 18. On 29 May 1973, the applicant was transferred and confined at the Post Stockade, Fort George G. Meade, Maryland. 19. The applicant's records contain a SF 88 (Report of Medical Examination) and a SF 93 (Report of Medical History), both dated 30 May 1973. These documents show the applicant's medical condition at the time of his separation physical examination. Item 74 (Summary of Defects and Diagnosis) of the applicant's SF 88 contains the entry "none", and Item 77 (Examinee) contains the entry "is qualified for separation". In addition, in Item 8 (Statement of Examinee’s Present Health and Medications Currently Used) of the applicant's SF 93, the applicant indicated in his own hand, "Good" and "None", affirming that he was in good health at the time of his separation from military service. 20. The applicant’s records contain a DD Form 458 (Charge Sheet) which shows that, on 5 June 1973, the captain in command of Company B, U.S. Army Personnel Confinement Facility, Fort George G. Meade, preferred charges against the applicant for being AWOL from 17 November 1972 until 29 May 1973. This form further shows that the applicant was informed of the charges against him and that the charges were received by the summary court-martial convening authority on 5 June 1973. 21. The applicant’s records show that, on 14 June 1973, he consulted with counsel. On 18 June 1973, the applicant requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations). His counsel also certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant. 22. The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished an Undesirable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge. 23. On 21 June 1973, the captain serving as acting commander of Company B, U.S. Army Personnel Confinement Facility, Fort George G. Meade, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200. The separation action was reviewed and was found legally sufficient by the Deputy Post Judge Advocate on 22 June 1973. 24. On 26 June 1973, the colonel in command of Fort George G. Meade, Maryland, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be reduced to the rank of private/pay grade E-1 and issued an Undesirable Discharge Certificate. 25. A DA Form 3082-R (Statement of Medical Condition), dated 29 June 1973, shows the applicant acknowledged that he underwent a separation medical examination more than three working days prior to his departure from place of separation and that there had been no change in his medical condition. 26. The applicant's DD Form 214, with an effective date of 29 June 1973, shows that he was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial and that his character of service was under other than honorable conditions. The applicant served 1 years and 4 months of active service and 988 days of time loss during this enlistment. This discharge document also shows that the applicant was issued a DD Form 258A (Undesirable Discharge Certificate). 27. There is no evidence showing that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 28. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 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, an undesirable discharge is normally considered appropriate. 29. Army Regulation 635-200, paragraph 3-7, 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. Whenever there is doubt, it is to be resolved in favor of the individual. 30. Army Regulation 635-200, paragraph 3-3, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant contends that his under conditions other than honorable discharge should be upgraded because he served his country in his best capacity, that his release was forced upon him, and that he was not given the benefit of counsel. In addition, the applicant contends that he suffers from a number of illnesses that are a result of his service. 2. The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations. 3. Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, which all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process. 4. The applicant’s service record shows instances of possession of a suspected illegal substance, failure to report to his designated place of duty, and failure to obey a lawful order. The applicant’s record of service clearly shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Thus, the applicant is not entitled to an honorable discharge. 5. The applicant's record of service shows that he was AWOL from the Army for 988 days and dropped from the rolls on three occasions. Based on the nature of the applicant's indiscipline, his service was not satisfactory. Therefore, the applicant is not entitled to a general discharge. 6. The applicant provided no evidence, and there is no evidence in the available records, that supports the applicant’s contention that his release from military service was forced upon him, or that he was not given the benefit of counsel. In fact, records contain documentation which shows the applicant acknowledged that he consulted with legal counsel on both his request for discharge and the benefits associated with the possible types of discharge. 7. The applicant provided 23 pages of medical documents from the time of his military service, which included his separation physical examination. Records show that the applicant was in good health and did not have any medical conditions at the time of his separation. There is no evidence in available records, and the applicant has not provided any evidence, that shows he was diagnosed or treated for any illnesses that were the result of his military service. 8. Army Regulation clearly provides that discharges are based on the quality of the Soldier's military service in accordance with published standards. Discharges are not granted or upgraded for the purpose of making an individual eligible for medical care or other benefits. 9. Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 June 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 June 1976. The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __KAN__ __WDP__ __MJNT _ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____Kathleen A. Newman_____ CHAIRPERSON INDEX CASE ID AR20050001538 SUFFIX RECON YYYYMMDD DATE BOARDED 20050823 TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19730629 DISCHARGE AUTHORITY AR 635-200, Chapter 10 DISCHARGE REASON Discharge in Lieu of Trial by Court Martial BOARD DECISION DENY REVIEW AUTHORITY Mr. Chun ISSUES 1. 144.0000.0000 2. 3. 4. 5. 6.