RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 November 2007 DOCKET NUMBER: AR20070006245 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. x 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 undesirable discharge be upgraded to general, under honorable conditions. 2. The applicant states, in effect, that the Board should consider his request because of his bad health. In a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) he appended to his DD Form 149 (Application for Correction of Military Record), he states he has been a diabetic since 1982 and is on insulin. He states he has had high blood pressure, high cholesterol, heart disease, and has been on dialysis since May 2006. He adds that he had his right leg amputated below the knee in August 1998 and his left leg amputated below the knee in 2002. 3. In support of his request, the applicant provides a copy of his DD Form 214, Armed Forces of the United States Report of Transfer or Discharge, and three statements of support for an upgrade of his discharge. 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 limitation 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 evidence shows the applicant enlisted in the Regular Army for a period of 2 years on 30 April 1969. He successfully completed basic combat training at Fort Leonard Wood, Missouri. 3. The applicant was advanced to the rank and pay grade, Private, E-2, on 4 July 1969, at the completion of his basic combat training. 4. The applicant was sent to Fort Polk, Louisiana, for advanced individual training. On completion of his advanced individual training, he was awarded the military occupational specialty 76A, Supply Clerk. 5. On completion of his advanced individual training, the applicant was ordered to Germany as a first duty station. He was assigned to the US Army Overseas Replacement Station, Fort Dix, New Jersey, with a reporting date of 18 September 1969. The applicant failed to report for overseas shipment to Germany and was reported absent without leave (AWOL) on the same date. The applicant remained AWOL until about 10 February 1970. 6. On 20 February 1970, the applicant received a special court-martial. He was found guilty of being AWOL for the period 18 September 1969 to 10 February 1970. He was sentenced to reduction to the rank and pay grade, Private, E-1; to forfeit $50.00 per month for 3 months; and to confinement at hard labor for one month. The sentence was approved and ordered executed on 27 February 1970. 7. On 27 March 1970, the applicant absented himself without leave from his unit, Headquarters and Headquarters Company, 260th Quartermaster Battalion, Fort Lee, Virginia, and remained absent until 4 November 1970. 8. On 11 January 1971, the applicant received nonjudicial punishment, under the provisions of Article 15, of the Uniform Code of Military Justice (UCMJ), for disobeying a lawful command from his superior noncommissioned officer on 6 January 1971. The imposed punishment was a forfeiture of $32.48 for one month, restriction to the company area for 14 days, and to perform extra duties for 14 days. The applicant did not appeal the punishment. 9. On 1 February 1971, the applicant was reported AWOL from his unit, the 267th Petroleum Company, 260th Quartermaster Battalion, Fort Lee, Virginia. He was dropped from the rolls of the organization on the same date. He was apprehended by civilian authorities on 18 May 1971 in Chicago, Illinois, and was returned to military control on the same date. 10. On 25 May 1971, the applicant underwent a separation physical examination. He was found medically qualified for separation. 11. On 4 June 1971, charges were preferred against the applicant for being AWOL for the period from 27 March 1970 until 4 November 1970 and for the period from 1 February 1971 to 18 May 1971. 12. On 17 June 1971, the applicant voluntarily submitted a request for discharge for the good of the service. In his request the applicant stated he understood he could request discharge for the good of the service because charges had been filed against him under the UCMJ, which could authorize the imposition of a bad conduct or dishonorable discharge. The applicant stated that he understood that if his request were accepted, he could be discharged under other than honorable conditions and furnished an undesirable discharge. He added that he was making his request of his own free will and had not been subjected to coercion whatsoever by any person. The applicant stated he understood that as a result of issuance of such a discharge, he would be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veteran's Administration (VA) [Department of Veteran's Affairs]; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law. He also understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge. 13. Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel. He consulted with counsel on 17 June 1971 and was fully advised of the nature of his rights under the UCMJ. Although he was furnished legal advice, he was informed that the decision to submit a request for discharge for the good of the service was his own. 14. The applicant was advised that he could submit a statement in his own behalf which would accompany his request for discharge. The applicant opted not to submit a statement. 15. The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service. On 1 July 1971, the approving authority, a major general, approved the applicant's discharge and directed he be furnished an undesirable discharge. 16. The applicant was discharged under the provisions of Army Regulation (AR) 635-200, Chapter 10, for the good of the service. He was provided an undesirable discharge with his service characterized as under other than honorable conditions. He was discharged in the rank and pay grade of Private, E-1, on 9 July 1971, On the date of his discharge, he had completed 9 months and 25 days creditable active military service, with 477 days time lost. 17. The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 1 April 1976. The ADRB, after careful consideration of his military records and all other available evidence determined that he had been properly discharged and denied his request for an upgrade. He was so notified on 8 March 1977. 18. AR 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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper. 19. AR 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for separation specifically allows such characterization. 20. The applicant's friend, a retired Naval Reserve chief petty officer asks the Board to grant the applicant's request for an upgrade of his discharge. He states, "I am a Viet Nam veteran and it pains me greatly to see someone like Jane Fonda who disrespected her country still living in the lap of luxury while a veteran of the Armed Forces lives in poverty without benefits of an honorable discharge." He adds that the applicant is an inspiration to him because he is always ready to help, lend a sympathetic ear, or speak words of encouragement. He is not a man who feels sorry for himself or feels that he is somehow a victim of society. He proves by his attitude everyday that he is a man of faith. 21. The applicant's other friend, who identified himself as a Korean War Veteran, also requests that the applicant's discharge be upgraded to honorable. He states the applicant possesses very good character and qualities. He suffers from many debilitating complications from diabetes and is currently on dialysis for kidney failure. Both legs have been amputated and with all his health problems, he maintains a positive mental attitude and wonderful outlook on life. 22. The applicant's brother, who identifies himself as a Vietnam Veteran, requests that the applicant's [his brother's] discharge be upgraded to an honorable discharge. He says his brother is an honest man who is only trying to make it in life the best that he can. He believes that with the VA's (Department of Veterans Affairs) help, he can start affording the medications he needs to maintain a normal life. He adds that he is also a double amputee and his brother served as an inspiration to do the best that he could. He concludes by stating he is a Vietnam Veteran so he knows what it feels like to need things. DISCUSSION AND CONCLUSIONS: 1. In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy this requirement. 2. The evidence shows that on 4 June 1971, charges were preferred against the applicant for being AWOL for the period from 27 March 1970 until 4 November 1970 and for the period from 1 February 1971 to 18 May 1971. These charges were punishable under the UCMJ with a punitive discharge. The evidence shows he consulted with defense counsel and voluntarily, and in writing, requested separation from the Army for the good of the service. 3. On 17 June 1971, the applicant voluntarily submitted a request for discharge for the good of the service. The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service and on 1 July 1971, the approving authority, a major general, approved the applicant's discharge and directed he be furnished an undesirable discharge. 4. The evidence shows the applicant was discharged under the provisions of AR 635-200, Chapter 10, for the good of the service on 9 July 1971. 5. The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows that the applicant was aware of that prior to requesting discharge. It is believed that the reason for discharge and the characterization of service were both proper and equitable. 6. The Board acknowledges the applicant's desire to have his undesirable discharge upgraded to general, under honorable conditions, so that he can qualify for medical and other benefits administered by the VA and other Federal and State social service organizations; however, the Board does not grant relief solely for the purposes of qualifying an applicant for benefits administered by these agencies. 7. The applicant is advised to visit with a VA representative to determine which of a wide array of veterans' programs and benefits he may be entitled to as a result of his service before his discharge. 8. In view of the foregoing, there is no basis for granting the applicant's request for an upgrade of his undesirable discharge with his service characterized as under other than honorable conditions. 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 INDEX CASE ID AR20070006245 SUFFIX RECON DATE BOARDED 20071129 TYPE OF DISCHARGE DATE OF DISCHARGE DISCHARGE AUTHORITY DISCHARGE REASON BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 144.0000 2. 3. 4. 5. 6.