RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	   20 March 2007
	DOCKET NUMBER:  AR20060010316 


	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.


	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, in effect, that his undesirable discharge be upgraded to a general or an honorable discharge. 

2.  The applicant essentially states that he served in Vietnam, but that he should have received some kind of counseling to readjust him to duty back in the United States.  He also states, in effect, that he proudly served in Vietnam and with honor, but came back a totally different person, and was not able to deal with stateside duty. He further states that he made mistakes, but that he has been a good person since his discharge.   

3.  The applicant provides a self-authored statement, dated 17 July 2006, and a template form from a Self-Help Guide to Discharge Upgrading in support of this application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 
26 October 1972, the date of his discharge from the Regular Army.  The application submitted in this case is dated 17 July 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’s military records show that he enlisted in the Regular Army on 
23 April 1968.  He completed basic and advanced individual training and was awarded military occupational specialty 91A (Medical Corpsman).  

4.  On 12 September 1968, while attending advanced individual training, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for going absent without leave (AWOL) on 18 August 1968 and remaining AWOL until his return on 2 September 1968.  His punishment consisted of forfeiture of $40.00 per month for 2 months, which was suspended for a period of 90 days at which time the suspended portion will be remitted unless sooner vacated.  He was also given extra duty for 45 days. 
5.  He served a tour of duty in Vietnam from 13 November 1968 to 12 November 1969, and then was reassigned to Fort Campbell, Kentucky in December 1969.

6.  On 19 August 1970, the applicant was convicted by a special court-martial for going AWOL from his unit at Fort Campbell, Kentucky on 16 April 1970, and remaining AWOL until on or about 4 August 1970.  His punishment consisted of hard labor without confinement for 3 months, forfeiture of $50.00 pay per month for 
2 months, reduction in rank from private first class/pay grade E-3 to private/pay grade E-1, and restriction to the limits of the Special Processing Detachment, United States Army Garrison, Fort Hood, Texas for 2 months.

7.  On 25 August 1970, the applicant went AWOL again.  On 29 September 1970, he was dropped from the rolls of the Army and listed as a deserter.  He remained in this status until his return to military control on 14 August 1972.

8.  In an undated disposition form, the applicant, subsequent to receiving legal counsel, voluntarily requested discharge for the good of the Service under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  He acknowledged that he was not subjected to any coercion with respect to his request for discharge, and was advised of the implications that are attached to it.

9.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged that he understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veterans Administration [what is now the Department of Veterans Affairs] and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  Although the applicant indicated that statements in his own behalf were submitted, there are no statements from him present in his military records.

10.  On 13 October 1972, the proper approval authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Undesirable Discharge Certificate.  On 26 October 1972, the applicant was discharged accordingly.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  The applicant essentially stated, in pertinent part, that he should have received some kind of counseling to readjust him to duty back in the United States.  He also states, in effect, that he proudly served in Vietnam and with honor, but came back a totally different person, and was not able to deal with stateside duty.  However, there is no evidence in his military records of service medical records that he ever requested any counseling or assistance from his chain of command or military treatment facility.

13.  The applicant also stated that he made mistakes, but that he has been a good person since his discharge.

14.  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 trail by court-martial.  An undesirable discharge is normally considered appropriate.

15.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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 contends that his undesirable discharge should be upgraded to a general or an honorable discharge.

2.  The fact that the applicant essentially stated that he should have received some kind of counseling to readjust him to duty back in the United States was noted.  However, there is no evidence in his military records of service medical records that he ever requested any counseling or assistance from his chain of command or military treatment facility.

3.  The applicant's contentions regarding his post-service conduct was considered.  However, good post-service conduct alone is not a basis for upgrading a discharge.  

4.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's record of service shows that he received NJP under Article 15 of the UCMJ on at least one occasion, was convicted by a duly convened court-martial, and went AWOL on numerous occasions, with the most egregious being his AWOL and desertion from 25 August 1970 to 14 August 1972.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 26 October 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 25 October 1975.  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

___KN __  ___DH __  __LD  ___  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.




____Kathleen Newman_______
          CHAIRPERSON




INDEX

CASE ID
AR20060010316
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070320
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19721026
DISCHARGE AUTHORITY
AR 635-200, CHAPTER 10 
DISCHARGE REASON
DISCHARGE IN LIEU OF TRIAL BY CM - AWOL
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.7100.0000
2.

3.

4.

5.

6.