BOARD DATE: 24 November 2009 DOCKET NUMBER: AR20090009413 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 his undesirable discharge (UD) be upgraded to general under honorable conditions. 2. The applicant states he could not adjust to military conditions as a kid of 17 and the thought of serving in Vietnam and killing people scared him. 3. The applicant provides no supporting documentation. 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 enlisted in the Regular Army with parental consent on 15 August 1968, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman). 3. The applicant is shown to have been absent without leave (AWOL) eight times from 1 through 2 September 1968, from 10 through 11 September 1968, from 16 through 17 September 1968, from 4 through 9 January 1969, from 2 through 6 February 1969, from 21 April through 8 June 1969, from 16 June through 11 July 1969, and from 23 October 1969 through 16 April 1970. 4. Two of his periods of AWOL are shown to have ended as a result of apprehension by civil authorities. 5. In addition to the periods of AWOL, the applicant was in confinement from 10 through 30 January 1969, from 7 February through 7 April 1969, from 12 July through 26 August 1969, and from 17 April through 1 June 1970. 6. On 21 August 1969, a special court-martial found the applicant guilty of being AWOL from 21 April through 8 June 1969 and from 16 June through 11 July 1969. 7. On 18 May 1970, a special court-martial found the applicant guilty of being AWOL from 23 October 1969 through 17 April 1970. 8. He is not shown to have been awarded any personal awards or decorations and the record contains no favorable comments or counseling statements. 9. The applicant's DD Form 214 show he was discharged under conditions other than honorable in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) with a separation program number of 28B for unfitness – frequent incidents of a discreditable nature with civil or military authorities. He had 7 months and 22 days of creditable service with 493 days of lost time. 10. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review. 11. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, a UD was normally considered appropriate. 12. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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. Paragraph 3-7c states that a discharge under conditions other than honorable may be issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier. 13. Army Regulation 15–185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. DISCUSSION AND CONCLUSIONS: 1. The applicant states he could not adjust to military conditions as a kid of 17 and the thought of serving in Vietnam and killing people scared him. 2. The applicant was on active duty for less than a month when he went AWOL the first time. He had more than twice as much lost time as creditable service. 3. The fact that he was young and scared of the possibility of having to kill or of being killed if he served in Vietnam is not a valid mitigating factor for his repeated misconduct and numerous periods of AWOL. 4. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record. 5. The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. The applicant has failed to submit evidence that would satisfy this requirement. 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) AR20090009413 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090009413 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1