IN THE CASE OF: BOARD DATE: 2 April 2009 DOCKET NUMBER: AR20080019100 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, that his undesirable discharge (UD) be upgraded to honorable. 2. The applicant states, in effect, that he volunteered to join the Marine Corps twice but was turned down and was later drafted into the Army and volunteered for Vietnam. He volunteered to join and proudly served his country. He went home on leave, married, and failed to return to duty in Vietnam. After he realized his mistake, he voluntarily turned himself in. He states that he was told his discharge papers had no limits after 6 months. He is a proud veteran and takes pride in our country today. He would love to show his pride with an upgraded discharge. 3. In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States); a copy of his discharge letter; a DA Form 2496 (Disposition Form), subject: Processing for Separation; and his DD Form 214 (Armed Forces of the United States Report or Transfer or 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 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’s military records show he was inducted into the Army of the United States on 18 July 1966. He completed basic and advanced training and was awarded military occupational specialty 57A (General Duty Soldier). He was promoted to pay grade E-4 on 5 September 1967. He arrived in Vietnam on or abou5 19 November 1966. 3. The applicant was reported absent without leave (AWOL) from 14 October 1967 and dropped from the rolls of his unit on 12 November 1967. He was returned to military control on 23 February 1971. 4. On 24 February 1971, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Detachment, U.S. Army Training Center Infantry and Fort Jackson, Fort Jackson, South Carolina. The applicant was charged with one specification of being AWOL from 22 September 1967 to 23 February 1971. 5. On 1 March 1971, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations) chapter 10. In doing so, he acknowledged that he had not been coerced with respect to his request for discharge. He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration. He waived his rights and elected not to submit a statement in his own behalf. 6. On 2 March 1971, the applicant's unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate. The unit commander stated, in effect, that a review of the applicant's records in conjunction with his negative attitude toward honorable service indicated that the best interests of the U.S. Army would be served with an approval of the applicant's discharge request. 7. On 4 March 1971, the applicant's headquarters commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate. 8. On 18 March 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1. 9. The applicant was discharged on 26 March 1971 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable. He was credited with 1 year, 3 months and 12 days of net active service and lost time from 14 October 1967 to 22 February 1971 due to AWOL. 10. There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge. 11. Army Regulation 635-200 (Enlisted Separation), in effect at the time, set forth the basic authority for separation of enlisted personnel. Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A UD was normally considered appropriate. The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record. 12. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor. 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 inappropriate. 13. Army Regulation 635-200, paragraph 3-7b, also 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. In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to honorable. He has not shown error, injustice, or inequity for the relief he now requests. He was properly discharged and he has not shown otherwise. 2. The evidence shows the applicant was charged with one specification of being AWOL from 22 September 1967 to 23 February 1971. Upon his return to military control, he voluntarily requested discharge in lieu of trial by court-martial. He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged. The applicant also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate. 3. Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge. 4. The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights. He was properly discharged in accordance with pertinent regulations with due process. 5. There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations. 6. In view of the foregoing, there is no basis for granting the applicant's request. BOARD VOTE: ___x____ ____x___ ___x____ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ________ ________ ________ 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) AR20080019100 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080019100 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1