RECORD OF PROCEEDINGS


	IN THE CASE OF:	


	BOARD DATE:	  15 March 2007
	DOCKET NUMBER:  AR20060011670 


	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:


Ms. Margaret K. Patterson

Chairperson

Mr. Larry W. Racster

Member

Mr. Rodney E. Barber

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 be upgraded to an honorable or general discharge.

2.  The applicant states, in effect, that he served in Vietnam for 1 year.  He also states, in effect, that during that time he performed his duty to the best of his ability and put his life on the line for his country; however, his service in Vietnam is scrutinized to this very day.  The applicant further states, in effect, he believes that anyone who served in Vietnam for even a single day is aware of the treacherous conditions that all Soldiers of that war endured.  The applicant adds that after returning to the United States, he was unable to cope with changes that he had undergone from being in Vietnam and at the same time he was experiencing family problems.  The applicant concludes by stating that he served proudly and honorably in Vietnam, but upon returning to the United States he could not cope with life back home.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), with an effective date of 11 September 1975; an Administrative Discharge Sheet; and Headquarters, III Corps and Fort Hood, Fort Hood, Texas, Special Orders Number 180, dated 9 September 1975.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 11 September 1975, the date of his discharge.  The application submitted in this case is dated 25 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’s military service records show he enlisted and entered active duty in the Regular Army on 2 November 1967 for a period of 3 years.  Upon completion of basic combat training and advanced individual training, the applicant was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Repairman).
4.  The applicant's military service records show that he was assigned to Company C, 39th Engineer Battalion (Combat) in Vietnam on 17 April 1968 and performed principal duty in MOS 63B as a Wheel Vehicle Mechanic.  On
18 October 1968, the applicant was promoted to the rank of specialist four/pay grade E-4.  On 30 December 1968, he was assigned in principal duty MOS 12B as a Heavy Dump Truck Driver.  For his service in Vietnam the applicant was awarded the Vietnam Service Medal with 2 bronze service stars (for participation in 2 campaigns) and Republic of Vietnam Campaign Medal with "1960" Device.  On 4 April 1969, the applicant departed Vietnam en route to the United States.  
 
5.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS [Expiration of Term of Service]) of this document shows that the applicant was absent without leave (AWOL) for 30 days, from 8 September 1969 through 7 October 1969; AWOL for 31 days, from 17 November 1969 through 17 December 1969; dropped from the rolls (DFR) for 33 days, from 18 December 1969 through 19 January 1970; AWOL for 35 days, from 28 January 1970 through 3 March 1970; and DFR on
4 March 1970 for 1,979 days through 3 August 1975, when he was returned to military control on 4 August 1975.

6.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 5 August 1975, that preferred a court-martial charge against the applicant for his violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for the period of AWOL from on or about 28 January 1970 to on or about 4 August 1975.

7.  On 6 August 1975, 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 possible effects of an undesirable discharge if the request for discharge is approved, and the rights available to the applicant.

8.  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.

9.  On 11 August 1975, the captain serving as Commander, U.S. Army Personnel Control Facility, III Corps and Fort Hood, Fort Hood, Texas, indicated that he had personally interviewed the applicant and determined that rehabilitation would not be in the best interest of the applicant or U.S. Army.  The company commander recommended approval of the applicant's request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200 and requested an Undesirable Discharge Certificate be furnished.  The applicant's request for discharge was then endorsed by the major serving as Acting Commander, Headquarters Command, III Corps and Fort Hood, Fort Hood, Texas, who also recommended approval of the applicant's request for discharge for the good of the service.

10.  On 18 August 1975, the lieutenant general serving as Commander, III Corps and Fort Hood, Fort Hood, Texas, approved the applicant's request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation
635-200 and directed that an Undesirable Discharge Certificate be furnished the applicant.  The Commanding General also directed that the applicant be reduced to the lowest enlisted grade effective the date of the approval of the discharge.

11.  On 11 September 1975, the applicant was discharged in the rank of private/pay grade E-1, under the provision of Army Regulation 635-200, Chapter 10, with an undesirable discharge.  At the time of his discharge the applicant had completed 2 years, 1 month, and 1 day net active service during the period under review.

12.  The applicant's military service records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 11 September 1975.  Item 21 (Time Lost - Preceding Two Yrs) shows the entry "700 days
(10 USC) 68 days (ExLv) (See Item #27).  Item 27 (Remarks) contains the following entries: "Item #21:  2108 days lost under Title 10 USC 972 from
8 Sep 69 thru 7 Oct 69; 17 Nov 69 thru 17 Dec 69; 18 Dec 69 thru 19 Jan 70;
28 Jan 70 thru 3 Mar 70 and 4 Mar 70 thru 3 Aug 75" and "Item #21:  68 days excess leave from 30 Apr 69 thru 27 May 69; 7 Aug 69 thru 8 Aug 69; 3 Nov 69 thru 5 Nov 69; and from 8 Aug 75 thru 11 Sep 75."  Item 18 (Record of Service), Block a (Net Active Service This Period), of the form shows that the applicant completed a total of 2 years, 1 month, and 1 day net active service.  Item 29 (Signature of Member Being Separated) of the DD Form 214 contains the stamped entry "Separatee unavailable for signature."  This document also contains the authority and reason for separation and character of service and shows that the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, and his character of service was under other than honorable conditions.

13.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

14.  The applicant's military service records contain a copy of Headquarters,
III Corps and Fort Hood, AFZF-AG-T, Fort Hood, Texas, memorandum, dated
11 September 1975, subject:  Army Discharge Review Board.  This document shows, in pertinent part, the applicant was advised of the process, procedure, and time limit for making application to the Army Discharge Review Board for review of the type and nature of the discharge of a former member of the Army.

15.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Enlisted Records Center, Fort Benjamin Harrison, Indiana, undated letter to Mrs. Sherry M____.  This document shows, in pertinent part, that the addressee was notified in order to solicit her assistance in advising the applicant about his eligibility to participate in the Clemency Program established by Presidential Proclamation Number 4313, dated 16 September 1974, since the applicant had not contacted or reported to the U.S. Army Enlisted Records Center at Fort Benjamin Harrison (Indiana) with regard to the clemency program.

16.  There is no evidence showing the applicant applied to the Army Discharge Review Board requesting a change regarding the reason or character of service of his discharge within its 15-year statute of limitations.  There is also no evidence showing the applicant availed himself of the clemency program, although this would not have changed the reason and character of the applicant's discharge.

17.  Presidential Proclamation 4313 was issued on September 16, 1974.  It provided, in pertinent part, that individuals absent from the military for a long period of time, primarily in connection with the war in the Republic of Vietnam, could avail themselves of a clemency program.  If they returned to military control, swore allegiance again to the United States and agreed to perform a period of alternate service under the supervision of the Selective Service, a Clemency Discharge would be given in the name of the President.  In essence, this was a neutral discharge and a pardon issued by the President of the United 


States.  However, the individual would normally receive an undesirable discharge from the military service.  Service discharge review boards and correction boards are not empowered to change the Clemency Discharge, but may review the underlying circumstances of the discharge.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's discharge, set 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 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, an undesirable discharge under other than honorable conditions is normally considered appropriate.

19.  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.

20.  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.

21.  Army Regulation 635-200, paragraph 3-7c, provides that an undesirable discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his undesirable discharge should be upgraded to an honorable or general discharge because he served in Vietnam for 1 year, performed his duty to the best of his ability, and put his life on the line for his country.  He also contends, in effect, that he was unable to cope with changes that he had undergone from being in Vietnam and the family problems he was experiencing upon his return to the United States.  However, the applicant provides insufficient documentary evidence in support of his claim.

2.  The accomplishments of the applicant during his period of service are noted. However, the this service, specifically his 1-year tour of duty in the Republic of Vietnam, is not so meritorious as to overcome the applicant’s period of AWOL that was in excess of 2,108 days (i.e., more than five years and 9 months).

3.  The evidence of record shows that the applicant completed 2 years, 1 month, and 1 day net active service during the period of service under review.  He also had 2,108 days of time lost during this period.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  Therefore, since there is no evidence of record to show that the applicant's under other than honorable conditions discharge under the provisions of Army Regulation 635-200 was not in accordance with the Army regulatory guidance in effect at the time, there is no basis to change his discharge.

5.  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.

6.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 11 September 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on
10 September 1978.  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

___MKP__  ___LWR_  __REB__  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.




____Margaret K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR20060011670
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
2007/03/15
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19750911
DISCHARGE AUTHORITY
AR 635-200, Chapter 10
DISCHARGE REASON
Misconduct
BOARD DECISION
DENY
REVIEW AUTHORITY
Mr. Schwartz
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.