RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2007
	DOCKET NUMBER:  AR20060012714 


	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 that his undesirable discharge, characterized as under other than honorable conditions, be upgraded to honorable and that his service in the Republic of Vietnam (RVN) be verified.

2.  The applicant states, in effect, that he is a Canadian citizen who completed his first enlistment in the U.S. Army and reenlisted to go to the RVN.  While in the RVN he was advised that because he was not a U.S. citizen, he should not be there.  He was also told that he could not be a noncommissioned officer, even after he reenlisted and extended his tour of duty in the RVN.  No one could give him an explanation on how to obtain his citizenship, but he was told he had to be on U.S. soil for six months, so he went on leave and was advised that he would get new orders.  He wants to know why he is not considered an American when he reenlisted in the Army and would like this situation straightened out.     

3.  The applicant provides a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 17 August 1972, the date of his discharge from the Army.  The application submitted in this case is dated 31 August 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.  On 2 November 1964, the applicant enlisted in the Regular Army for a period of three years.  He was trained in, awarded, and served in military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).  His enlistment contract shows that he was born in Regina, Canada and was not a U.S. citizen.

4.  On 25 November 1965, he was honorably discharged for the purpose of reenlistment.  On 26 November 1965, while at Bamberg, Germany, he reenlisted for a period six years for an MOS producing service school.
5.  The applicant's DA Form 20 (Enlisted Qualification Record) was reconstituted from available records while he was at the U.S. Army Personnel Confinement Facility at Fort Leonard Wood, Missouri, and was not reconciled with his official record.  It shows that he was in the RVN from August 1966 through June 1968 with the 31st Supply Company, 96th Supply and Service Battalion; however, in Remarks (Item 42) it states "EM departed RVN for CONUS on SP LV 2 May 1968."  Item 30 (Remarks) of his DD Form 214 shows that he had service in the RVN from August 1966 – June 1968; however Item 22c (Foreign and/or Sea Service) shows "Vietnam NOT VERIFIED."  There is no further documentation available in his official record to confirm any of these above entries.

6.  The applicant's DA Form 20 also shows he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and three Overseas Service Bars.  This document also shows he attained the grade of specialist five/E-5.

7.  On 24 May 1968, the applicant completed a United States Department of Justice Immigration and Naturalization Service Certification of Military or Naval Service (N-426) Form certifying that he had been on active duty since his reenlistment in Bamberg on 26 November 1965.  At the time the applicant completed this form, he indicated that his unit of assignment was the 31st Supply Company, RVN.

8.  The applicant departed in absent without leave (AWOL) status on 8 June 1968 and remained absent until 10 July 1972.  

9.  On 18 July 1972, the applicant was charged with AWOL.  On 26 July 1972, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.

10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  

11.  The applicant submitted a statement in his own behalf stating "I came in the Army in November 1964, I was still a Canadian citizen even tho (sic) I had lived in the U.S.A. for 7 years previous.  I took basic training and AIT at Fort Knox.  From there I went over to Bamberg, Germany in 1965.  In 1966 I reenlisted for
6 years for warrant officer training.  About a month after I reenlisted I was told I could not get what I had reenlisted for because I was a Canadian citizen.  I said then that my reenlistment contract should not be valid but they said that it was.  I was told I would get what I reenlisted for after I became an American citizen.  I then went to an American counselor and I was told I could not get my American citizenship until I had three years in the Army.  I got mad and I volunteered for Vietnam.  I was sent to Vietnam and served my 12 months plus extended twice, so I would have 3 years in the Army.  I asked in Vietnam and they said I would have to wait till (sic) I got back to the U.S. A.  I waited and when I got back to Minneapolis I was told by the immigration officer that I would have to be in the states six months.  I then thought that the Army had taken advantage of me and decided I wanted out and went AWOL."

12.  On 26 July 1972, the intermediate commander recommended the applicant be discharged with an undesirable discharge.

13.  On 14 August 1972, the separation authority approved the applicant's request for discharge and directed he be issued an undesirable discharge.

14.  Accordingly, the applicant was discharged on 17 August 1972 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an undesirable discharge.  He had 1266 days of lost time due to AWOL and was credited with 3 years, 8 months, and 14 days of active duty.  His service was characterized as under other than honorable conditions on his DD Form 214. 

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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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.

18.  On 26 September 1973, the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.   

19.  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 Army Discharge Review Board (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 Army Board for Correction of Military Records (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 evidence of record shows the applicant had 1266 days of lost time due to AWOL.  

2.  The applicant contends that he was given the run around regarding the requirements for U.S. citizenship and he became angry and went AWOL.  This was a voluntary act taken by the applicant.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

4.  Given the above, the applicant provided insufficient evidence to mitigate his lengthy AWOL and his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service. 

5.  The applicant requests that his service in the RVN be verified; however, his DD Form 214 already shows this service in Item 30.  The Board is unable to change Item 22c without specific dates of assignment to the RVN and his assignment orders are not available in the record. 

6.  The Board is not in a position to address the applicant's questions regarding immigration law or policies.  He must address those questions to the appropriate agency.

7.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.  Therefore, there is no justification to grant the applicant's request.

8.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 26 September 1973.  As a result, the time for the applicant to file a request for correction of any error or injustice to this Board expired on 25 September 1975.  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

__jtm___  __tmr___  __rmn___  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.



							John T. Meixell
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20060012714
SUFFIX

RECON

DATE BOARDED
20070417
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19720817
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.