IN THE CASE OF: BOARD DATE: 1 November 2011 DOCKET NUMBER: AR20110006793 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, in effect, his under other than honorable conditions discharge be upgraded. 2. The applicant states: * he recently discovered he was given a "dishonorable" discharge * his commander agreed to issue him a general under honorable conditions discharge at the time of his separation * he was told his discharge would be changed to an honorable discharge after six months * his is unable to receive Department of Veterans Affairs (VA) benefits due to his discharge * he is suffering from depression due to flashbacks of Vietnam 3. The applicant provides: * a letter from his Senator * three letters from his psychotherapist * a letter from his physician * a letter from the National Personnel Records Center 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. After having had prior service, the applicant enlisted in the Regular Army on 30 April 1974. Upon completion of initial entry training, he was awarded military occupational specialty 63B (Wheeled Vehicle Repairman). He later held military occupational specialty 63F (Recovery Specialist). The highest rank/ grade he attained while on active duty was specialist five/E-5. 3. His record contains a DD Form 458 (Charge Sheet), dated 11 November 1974, that shows he was charged with being absent without leave for the period 16 October 1974 through 10 November 1974. 4. On 3 December 1974, additional charges were preferred against the applicant for failure to go at the prescribed time to his appointed place of duty. 5. On or about 9 December 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and of the procedures and rights that were available to him. Following counseling, he submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations). In his request for discharge he indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions. He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws. 6. Additionally, in his request for discharge, he stated the problems in meeting the daily requirements of military life were overwhelming and he had no desire to remain in the Army. 7. On 10 December 1974, the applicant's security clearance was revoked. 8. His chain of command unanimously recommended approval of his request with an undesirable discharge. 9. On 20 December 1974, the separation authority approved his request and directed that he be reduced to the rank/grade of private/E-1 and issued an Undesirable Discharge Certificate. 10. On 17 January 1975, he was discharged under the provisions of chapter 10, Army Regulation 635-200, and issued an Undesirable Discharge Certificate and a characterization of service of under other than honorable conditions. He had completed a total of 8 years, 4 months, and 18 days of creditable active service. His DD Form 214 (Report of Separation from Active Duty) shows he had 25 days of time lost. 11. The applicant provides letters from his Senator, psychotherapist, and physician requesting his discharge be reviewed. Both his psychotherapist and physician attest to his mental health status. His psychotherapist indicates he is experiencing moderate to severe post-traumatic stress disorder and was exposed to Agent Orange as a result of his military service in Vietnam. 12. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. 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, a discharge under other than honorable conditions is normally considered appropriate. 14. Army Regulation 635-200, 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. 15. Army Regulation 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 the Soldier's separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's request that his undesirable discharge should be upgraded was carefully considered and determined to be without merit. 2. His allegation that he was told his discharge would be automatically upgraded 6 months after his separation is unsubstantiated. His record is void of any evidence and he did not provide any evidence that he was ever told he would be issued either a general or an honorable discharge in lieu of his discharge under other than honorable conditions. 3. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable. 4. His record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, to avoid a trial by court-martial which may have resulted in a felony conviction. 5. The evidence shows he was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and his rights were fully protected throughout the separation process. Further, his discharge accurately reflects his overall record of service for the period under review. 6. Based on his record of indiscipline, he is not entitled to an upgrade of his discharge. The ABCMR also does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her 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) AR20110006793 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110006793 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1