RECORD OF PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 16 December 2003
         DOCKET NUMBER: AR2003091337

         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. Jessie B. Strickland		Analyst

The following members, a quorum, were present:

Mr. Samuel A. Crumpler		Chairperson
Ms. Shirley L. Powell		Member
Mr. John N. Slone		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge under other than honorable conditions be upgraded to honorable.

2. The applicant states that he was a veteran of the Vietnam Conflict and did not receive any counseling or debriefing. He goes on to state that he had a lot of problems and no help with them. He also states that he served his country and believes that he deserves an honorable discharge.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an injustice which occurred on 12 January 1983. The application submitted in this case is dated 12 May 2003.

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 limitation 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 enlisted in Charlotte, North Carolina, on 15 April 1968, for a period of 3 years, under the airborne training option. He completed his basic combat training at Fort Bragg, North Carolina and his advanced individual training (AIT) at Fort McClellan, Alabama. Upon completion of his AIT, he was transferred to Fort Benning, Georgia, to undergo his airborne training. However, on 22 October 1968, he was permanently disqualified from further airborne training. Although the available records are not specific as to his disqualification, they show that nonjudicial punishment (NJP) was imposed against him for misconduct, which resulted in his reduction to the pay grade of E-1.

4. He was transferred to Vietnam on 13 December 1968 and was assigned to 2^nd Battalion, 28^th Infantry Regiment, for duty as an infantry indirect fire crewman. He was advanced to the pay grade of E-3 on 23 December 1968 and to the pay grade of E-4 on 5 July 1969.

5. He was honorably discharged on 22 September 1969 and reenlisted on 23 September 1969, for a period of 4 years and assignment to Fort Bragg. He was promoted to the pay grade of E-5 on 6 October 1969. He departed Vietnam on 12 December 1969 for assignment to Fort Bragg as a drill sergeant.

6. On 1 March 1970, NJP was imposed against him for borrowing a pair of shoes from a trainee and for breaking restriction. His punishment consisted of a forfeiture of pay, extra duty and restriction.

7. On 22 April 1970, NJP was imposed against him for being absent without leave (AWOL) from 16 March to 7 April 1970. His punishment consisted of a reduction to the pay grade of E-4 and a forfeiture of pay.

8. He again went AWOL from 2 July to 12 July 1970 and NJP was imposed against him on 20 July 1970. His punishment consisted of a reduction to the pay grade of E-3.

9. On 10 December 1970, NJP was imposed against him for two specifications of failure to go to his place of duty and one specification of impersonating a noncommissioned officer, by publicly wearing the rank of corporal. His punishment consisted of a reduction to the pay grade of E-2.

10. The applicant again went AWOL on 17 December 1970 and remained absent in a deserter status until he was returned to military control at Fort Bragg on 15 November 1982, where charges were preferred against him.

11. On 17 November 1982, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request. He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge. He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.

12. The appropriate authority approved his request on 20 December 1982 and directed that he be discharged under other than honorable conditions.

13. Accordingly, he was discharged under other than honorable conditions while on excess leave, on 12 January 1983, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He had served 1 year, 3 months and 20 days of active service during his current enlistment and had 4,384 days of lost time due to AWOL. He had 2 years, 8 months and 28 days of total active service and was awarded the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, and the Republic of Vietnam Campaign Medal.

14. A review of the available records fails to show any indication that the applicant made his chain of command aware that he was experiencing personal problems or that he was having difficulty adjusting after his return from Vietnam.

15. There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

16. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive. A discharge under other than honorable conditions is normally considered appropriate and there have never been any automatic provisions for an upgrade of such a discharge.

DISCUSSION AND CONCLUSIONS:

1. The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2. Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records. In doing so he admitted guilt to the charges against him. While he may now believe that he made the wrong choice, he should not be allowed to change his mind at this late date, especially considering the length of his absences as well as his repeated misconduct during such a short period of time.

4. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
5. Records show the applicant should have discovered the error or injustice now under consideration on 12 January 1983; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 January 1986. However, 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 file in this case.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__SAC___ ___JS__ ___SLP__ DENY APPLICATION

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not 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.




                  Samuel A. Crumpler
                  CHAIRPERSON

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INDEX

CASE ID	AR2003091337
SUFFIX
RECON
DATE BOARDED	2003/12/16
TYPE OF DISCHARGE	(UOTHC)
DATE OF DISCHARGE	1983/01/12
DISCHARGE AUTHORITY	AR635-200/CH10 . . . . .
DISCHARGE REASON	GD OF SVC
BOARD DECISION	(DENY)
REVIEW AUTHORITY
ISSUES 1.144.7000	689/A70.00
2.
3.
4.
5.
6.