RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  7 June 2007
	DOCKET NUMBER:  AR20060017217 


	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. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Ms. Carmen Duncan

Chairperson

Mr. Michael J. Flynn

Member

Mr. Jeffrey C. Redmann

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 (UD), characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that he was a young punk at the time and he did not think of the consequences of later life at that time.  He is very sorry for his actions and hopes that the Board takes this into consideration when making their decision.  He states that he served in Vietnam, loves his country, that there is no better place on earth, and asks that he be given another chance.  He would like to have his discharge upgraded so he can be treated for Agent Orange, because he loaded the stuff onto a chopper and sprayed it over the U Min Forest, in 4th Corps, for two and half months, and PTSD (Post Traumatic Stress Disorder), and entitled to other benefits.

3.  The applicant provided no additional documentation in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 3 April 1973, the date of his discharge.  The application submitted in this case is dated 20 November 2006, and was received for processing on 11 December 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 record shows he enlisted in the Regular Army on 29 January 1968, at the age of 17 years, 1 month, and 10 days.  His date of birth is 19 December 1950.  The applicant successfully completed basic combat training and advanced individual training at Fort Jackson, South Carolina.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 94B, Cook.  He was promoted to pay grade E-3 on 20 August 1968.


4.  On 15 November 1968, he was punished under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go to his appointed place of duty.  His punishment consisted of a reduction to pay grade E-2 and 14 days restriction and extra duty.

5.  The applicant was advanced to pay grade E-3 on 5 February 1969.  He continued to serve until he was honorably discharged on 19 February 1969, for immediate reenlistment.

6.  The applicant reenlisted on 20 February 1969, for 3 years, with an established expiration of term of service (ETS), of 19 February 1972.  He was advanced to pay grade E-4 on 11 July 1969.  He served in Vietnam from 26 January 1969 to 25 January 1970.

7.  On 24 March 1970, he was punished under Article 15, UCMJ, for being absent without leave (AWOL) from 3 March 1970 to 21 March 1970.  His punishment consisted of a reduction to pay grade E-3 (suspended) and a forfeiture of pay. 

8.  Item 44 (Time Lost), of his DA Form 20 (Enlisted Qualification Record), shows that he was AWOL from 11 May to 15 May 1970 (5 days).

9.  Charges were preferred against the applicant on 16 March 1973 for being AWOL from 16 June 1970 to 16 January 1973.

10.  Item 44 (Time Lost), of his DA Form 20, reconstructed copy, shows that he was AWOL from 16 June 1970 to 15 January 1973 (945 days).

11.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 which shows that on 3 April 1973, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was furnished an undesirable discharge, in the pay grade of E-1 and his service was characterized as under conditions other than honorable.  He had a total of 2 years, 6 months, and 12 days of creditable service and 637 days of lost time due to AWOL prior to his scheduled ETS and 331 days lost time due to AWOL subsequent to his normal ETS.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  
13.  Army Regulation 635-200 sets forth the basic authority for 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

14.  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.

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, 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.

DISCUSSION AND CONCLUSIONS:

1. In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  It is apparent that his discharge was based on his several incidents of misconduct, which included nonjudicial punishment on two occasions, under Article 15, UCMJ, and charges for AWOL from 16 June 1970 to 15 January 1973.  Therefore, there is insufficient basis to support his request for an upgrade of his UD.


4.  The evidence of record shows that the applicant accumulated a total of 637 days of lost time prior to his scheduled ETS and 331 days lost time due to AWOL subsequent to his normal ETS.  A cumulative absence of this duration is serious and there is insufficient evidence to show that he now deserves an upgrade of his discharge.  

5.  The applicant contends that he was a young punk at the time, that he did not think of the consequences of later life at that time, and is very sorry for his actions.  The applicant was 19 years, 5 months, and 28 days old, on 16 June 1970, the date he departed AWOL for a very lengthy time.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

6.  Careful consideration has been given to the applicant's contention that he served in Vietnam, that he would like to have his discharge upgraded so he can be treated for Agent Orange and PTSD, and be entitled to other benefits.  The applicant is advised that the Board does not upgrade discharges to enable individuals to qualify for benefits administered by the VA and/or other Federal and State agencies that provide benefits to veterans.

7.  The evidence of record clearly shows the applicant's first period of service was honorable and that he may be entitled to some VA benefits; however, he must contact his nearest VA representative for further assistance regarding VA benefits.

8.  There is no evidence in the available records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

9.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant in his application to the Board freely admitted the record was in error.  After evaluation of the record, there is no foundation upon which clemency can be shown and his discharge can be upgraded.

10.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 3 April 1973; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 2 April 1976.  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

___MJF__  __CD___  __JCR __  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.




_____Carmen Duncan         __
          CHAIRPERSON




INDEX

CASE ID
AR20060017217
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070607
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19730403
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.