RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  12 April 2007
	DOCKET NUMBER:  AR20060010952 


	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. Gerard W. Schwartz

Acting Director

Mr. John J. Wendland, Jr.

Analyst

The following members, a quorum, were present:


Mr. Curtis Greenway

Chairperson

Mr. Michael J. Flynn

Member

Mr. Edward E. Montgomery

Member

	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, characterized as under other than honorable conditions, be upgraded to an honorable or general discharge. 

2.  The applicant states, in effect, that he was discharged from the Army 2 years into his enlistment when he was ordered to go to Vietnam.  The applicant also states, in effect, that he knew he would not be able to bring himself to kill anyone, so he went absent without leave (AWOL) rather than go to Vietnam.  He further states, in effect, in retrospect he now sees that it was his duty to support the war effort, but he was unable to understand that at the age of 20.  The applicant concludes by stating, in effect, he is now homeless, trying to get his life back together, and upgrade of his discharge will allow him to be a more productive citizen.

3.  The applicant provides a copy of a Lane County Veterans Service Office, Eugene, Oregon letter, dated 26 July 2006.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 23 August 1971, the date of his discharge from the Army.  The application submitted in this case is dated 26 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 service records show he was born on 19 September 1950.  The applicant enlisted in the Regular Army for a period of 3 years on
13 November 1969.  The applicant's enlistment documents show, in pertinent part, that he enlisted for training in military occupational specialty (MOS) 67A (Aircraft Maintenance, Entry).  Upon completion of basic combat training, the applicant was assigned to Company D, 1st School Battalion, Transportation School Brigade, Fort Eustis, Virginia, effective 27 February 1970.


4.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Transportation School, Fort Eustis, Virginia letter, dated 9 June 1970, subject:  Relief or Recycle of Enlisted Student.  This document shows, in pertinent part, that the applicant was relieved from MOS 67A1O, Phase 1, MOS 67U training based on numerous absences from class, a failing academic status, and being AWOL since 1 June 1970.

5.  The applicant's military service records contain a DD Form 493 (Extract of Military Records of Previous Convictions), dated 22 July 1971, which shows the applicant was AWOL from on or about 1 June 1970 to on or about 1 July 1970.

6.  The applicant's military service records contain a copy of a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ), dated 13 November 1970.  This document shows that non-judicial punishment was imposed by the battalion commander against the applicant for, on or about 30 September 1970, absenting himself from his unit and remaining absent until on or about 16 October 1970. The punishment imposed was forfeiture of $50.00 per month for 2 months and
45 days extra duty.

7.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Training School, Fort Eustis, Virginia, Special Orders Number 254, dated 18 November 1970, that show he was assigned to the U.S. Army Correctional Holding Detachment, Fort Belvoir, Virginia, with a report date of
19 November 1970.

8.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Transportation School, Fort Eustis, Virginia, Special Orders Number 265, dated 1 December 1970, that show he was assigned to the U.S. Army Training Center, Infantry, Fort Jackson, South Carolina, with a report date of
6 December 1970, for training in MOS 11B (Light Weapons Infantry).

9.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Personnel Control Facility, Fort Knox, Kentucky, Special Orders Number 58, dated 28 June 1971, that show he was returned to military control at Fort Knox, Virginia, and assigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, Kentucky, effective 25 June 1971.

10.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Personnel Control Facility, Fort George G. Meade, Maryland, Special Orders Number 140, dated 19 July 1971, that show he was dropped from the rolls of Fort Knox, Kentucky; returned to military control at Fort George G. Meade, Maryland; and assigned to Company B, Personnel Control Facility, Fort George G. Meade, Maryland, effective 15 July 1971.

11.  The applicant's military service records contain a DD Form 458 (Charge Sheet) that shows, on 22 July 1971, the captain in command of Company B,
U.S. Army Personnel Control Facility, Fort George G. Meade, Maryland, preferred charges against the applicant for being AWOL during the period
8 December 1970 to 10 May 1971; 13 May 1971 to 25 June 1971; and 1 July 1971 to 15 July 1971.

12.  The applicant's military service records are absent any documentary evidence showing he was issued orders reassigning him to Vietnam.

13.  On 22 July 1971, the applicant requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

14.  The applicant signed his request for discharge, which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

15.  On 11 August 1971, the lieutenant colonel in command of the U.S. Army Personnel Control Facility, Fort George G. Meade, Maryland, recommended the applicant for separation from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.

16.  The colonel serving as Commander, Fort George G. Meade, Fort George
G. Meade, Maryland, approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200, directed the applicant be reduced to the rank of private/pay grade E-1, and issued an Undesirable Discharge Certificate.

17.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged on 23 August 1971, in accordance with the provisions of chapter 10 of Army Regulation 635-200, for the good of the service.  The applicant's DD Form 214 shows that he completed 2 years and
7 days net active service and had 274 days lost under Title 10, United States Code 972.

18.  On 21 February 1980, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB).  In his application, the applicant identified essentially the same issue as he identifies in this application.  Specifically, that he was against killing or any violence.  On 10 June 1981, the ADRB determined that the applicant’s discharge was proper and equitable and it voted to deny the applicant’s request for an upgrade of his discharge.

19.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

20.  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, 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.

21.  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.

22.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the service.

23.  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.  The U.S. Court of Appeals, observing that applicants to the ADRB are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 3-year limit on filing to the ABCMR should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge under other than honorable conditions should be upgraded to an honorable or general discharge because he was ordered to go to Vietnam, knew he would not be able to bring himself to kill anyone, so he went AWOL.  He also contends, in effect, that he was unable to fully understand his responsibilities and duty at the young age of 20.  However, the applicant provides insufficient evidence in support of his claim.

2.  The evidence of record shows that the applicant enlisted for training in MOS 67A (Aircraft Maintenance) and that the Army sent him to the U.S. Army Transportation School for that training.  The evidence of record also shows that the applicant failed to complete his training because of numerous absences, a failing academic status, and his unauthorized absence.  As a result, the applicant was issued orders for training in MOS 11B (Light Weapons Infantry) at Fort Jackson, South Carolina.  Thus, the orders directing the applicant's training in MOS 11B were a result of his poor record of academic performance at the transportation school he personally requested and his own personal misconduct.

3.  The applicant’s military service records show that he was AWOL from the Army for 274 days.  The applicant provided no evidence, and there is no evidence in the available records, that supports his contention that he was not able to fully understand the responsibilities and duties expected of a Soldier of the U.S. Army.  Records show that the applicant was nearly 20 years old at the time he first went AWOL and that he was over 21 years old at the time of his voluntary request for discharge under the provisions of chapter 10 of Army Regulation 635-200.  There is no evidence that indicates the applicant was any less capable of understanding his responsibilities and duties than other Soldiers of the same age who served in the Army in Vietnam and successfully completed military service during this time period.

4.  The applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The applicant’s record of service, which shows completion of only 24 months of his 36-month enlistment and 274 days (i.e., more than 9 months) of AWOL, did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, the applicant is not entitled to an honorable discharge. Furthermore, this service was not satisfactory.  Therefore, the applicant is also not entitled to a general discharge.

6.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 10 June 1981.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 9 June 1984.  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 timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__CG____  ___MJF_  ___EEM _  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.




 ____Curtis Greenway_____
          CHAIRPERSON




INDEX

CASE ID
AR20060010952
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/04/12
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19710823
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
For the Good of the Service
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.