RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 February 2007
	DOCKET NUMBER:  AR20060009346 


	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.

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	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 that his undesirable discharge be changed to an honorable discharge.  He also requests that his narrative reason be changed.

2.  The applicant states that he served honorably in Vietnam and served 1 year, 10 months, and 11 days in the Army.  He states he had less than 2 months left and he was stationed at Fort Carson, Colorado to wait for his discharge.  The serviceman, who shared the house with him and his wife, stole all of his money and went absent without leave (AWOL).  He was denied emergency funds because his time was too short so he borrowed money from his father in Pennsylvania for bus tickets home.  He did not come back because he did not want to be incarcerated.  He states that he was a 21-year-old with a new wife.  He lived in the jungles of Vietnam for 5 months and 19 days and he believes that he deserves an honorable discharge. 

3.  The applicant provides a letter from his wife.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 20 June 1974.  The application submitted in this case is dated 29 June 2006.

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 limitations 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 was inducted into the Army on 17 November 1967.  He completed basic combat training and advanced individual training.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).  He was assigned to Vietnam in June 1968 as a rifleman.

4.  On 21 June 1968, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being AWOL from 29 May 1968 to 18 June 1968.  His punishment consisted of a forfeiture of $39.00 pay per month for 2 months.  

5.  He was advanced to private first class on 25 August 1968.
6.  The applicant departed Vietnam in December 1968 and was transferred to the Valley Forge General Hospital in Phoenixville, Pennsylvania.  

7.  The applicant was reassigned to Company B, 2nd Battalion, 10th Infantry at Fort Carson, Colorado in March 1969.

8.  On 14 July 1969, the applicant accepted nonjudicial punishment under 
Article 15 for being AWOL from 7 July 1969 to 14 July 1969.  His punishment consisted of a reduction to private E-2, a forfeiture of $77.55 pay per month for 2 months, and performance of 2 hours duty for 20 days.

9.  Charges were preferred against the applicant on 28 May 1974 for being AWOL from 8 October 1969 to 23 May 1974.

10.  On 31 May 1974, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Affairs (VA) if an undesirable discharge was issued.  

11.  The applicant submitted statements in support of his request for discharge.  He returned from Vietnam and was sent to Valley Forge Hospital because his leg was burned.  He was then reassigned to Fort Carson, Colorado two months prior to his expiration of term of service.  Since he and his wife did not have enough finances, he moved off post and rented a house with an E-4.  He stated that the E-4 went AWOL with his money.  He and his wife did not have any food or money to pay the rent so they gathered all they had and went home to Pennsylvania.  He stated that he had a good job and a house to live in.  

12.  On 17 June 1974, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.  

13.  On 20 June 1974, the applicant was discharged from active duty under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 1 year, 10 months, and 9 days active military service with 1728 days of lost time due to AWOL.  

14.  There is no evidence of record which indicates the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

15.  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 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 discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

16.  Army Regulation 635-200, paragraph 3-7, 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.  

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 court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The applicant's record of service shows he received two Article 15s for being AWOL on two separate occasions for 40 days prior to the incident he describes as leading to his discharge.  He was later charged with being AWOL for 1, 688 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for an upgrade to an honorable discharge.  

3.  The applicant has failed to show through the evidence submitted or the evidence of record that the type of discharge and narrative reason issued to him was in error or unjust.

4.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 20 June 1974; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 19 June 1977.  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 timely file in this case.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x______  x_____  x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would 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.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




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          CHAIRPERSON




INDEX

CASE ID
AR20060009346
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070201
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19740620
DISCHARGE AUTHORITY
AR635-200, chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Chun
ISSUES         1.
110.0000
2.

3.

4.

5.

6.