RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  10 April 2007
	DOCKET NUMBER:  AR20060013421 


	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

Ms. Wanda L. Waller 

Analyst

The following members, a quorum, were present:


Mr. Kenneth Wright

Chairperson

Ms. LaVerne Douglas

Member

Ms. Ernestine Fields

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 that his undesirable discharge be upgraded to honorable or changed to a medical discharge.

2.  The applicant states that his landing zone in Vietnam was overrun by the enemy and he was in a state of shock when this happened.  He contends that the next day he was picking up bodies and that he saw so much trauma that he just could not take it anymore.  He contends that he asked to see someone but was told to go back to work and that he did it for a few more months and just could not take it anymore, so he left.

3.  The applicant provides a copy of his DD Form 214 (Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 30 November 1973.  The application submitted in this case is dated 
7 September 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 enlisted on 15 October 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11C (indirect fire crewman).  

4.  The applicant arrived in Vietnam on 22 March 1969.  He went absent without leave (AWOL) on 25 June 1969 and returned to military control on 9 July 1969.  He went AWOL on 22 July 1969 and returned to military control on 19 September 1973.  On 27 September 1973, charges were preferred against the applicant for one AWOL period (25 June 1969 to 9 July 1969) and one desertion charge 
(22 July 1969 to 19 September 1973). 

5.  On 24 October 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army 

Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he described a firefight in Vietnam wherein he stated that he lost his hearing due to a grenade exploding nearby.  He was ordered to a listening post but refused to go and apparently went AWOL.  He claimed that he turned himself in to a local police department in 1971 and the police department told him that he was not AWOL.      

6.  On 11 October 1973, the applicant underwent a separation physical examination and was found not qualified for retention. 

7.  A clinical record, dated 16 October 1973, states that the applicant, while AWOL, was involved in a motorcycle accident on 15 May 1970 which resulted in traumatic amputation of his right hand.

8.  On 26 November 1973, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

9.  Accordingly, the applicant was discharged with an undesirable discharge on 
30 November 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 11 months and 5 days of total active service with 1534 days of lost time due to AWOL and desertion.  

10.  On 14 November 1979, the Army Discharge Review Board (ADRB) denied the applicant’s request for an honorable discharge.

11.  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.  At the time, an undesirable discharge was normally considered appropriate. 



12.  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.  

13.  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.

14.  Army Regulation 635-40 governs the evaluation of physical fitness of Soldiers who may be unfit to perform their military duties because of physical disability.  The unfitness is of such a degree that a Soldier is unable to perform the duties of his office, grade, rank or rating in such a way as to reasonably fulfill the purposes of his employment on active duty.  Paragraph 4-3 states that an enlisted Soldier may not be referred for, or continue, disability processing when action has been started under any regulatory provision which authorizes a characterization of service of under other than honorable conditions.  

15.  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’s record of service included 1534 days of lost time due to AWOL and desertion.  His current explanation of why he went AWOL is not the same as the explanation he gave at the time.  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.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or general discharge.

2.  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.    

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  Since the applicant was separated under a regulatory provision that authorized a characterization of discharge of under other than honorable conditions (i.e. undesirable discharge), it does not appear he was eligible for physical disability processing.  Therefore, there is no basis for a medical discharge.

5.  Records show the applicant exhausted his administrative remedies in this case when his case was reviewed by the ADRB on 14 November 1979.  As a result, the time for the applicant to file a request for correction of any injustice to this Board expired on 13 November 1982.  The applicant did not file within the 
3-year statute of limitations; however, based on the available evidence 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

KW_____  _LD_____  _EF____  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.




___Kenneth Wright_____
          CHAIRPERSON




INDEX

CASE ID
AR20060013421
SUFFIX

RECON

DATE BOARDED
20060410
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19731130
DISCHARGE AUTHORITY
AR 635-200 Chapter 10
DISCHARGE REASON
For the good of the service
BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.
108.0000
3.

4.

5.

6.