RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  31 July 2007
	DOCKET NUMBER:  AR20070002356 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Jeanette R. McCants

Chairperson

Mr. Thomas M. Ray

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 that his discharge be upgraded.

2.  The applicant states, in effect, that he volunteered to go to the Republic of Vietnam so he could get out of the Army   He further states that he should not have been allowed to reenlist and that he regrets going absent without leave (AWOL) at the time and hopes that the board would grant him a second chance in life. 

3.  The applicant provides a self-authored statement in support of his application.

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 12 April 1972, the date of his discharge.  The application submitted in this case is dated 2 February 2007.

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 records show that he enlisted in the Regular Army on 7 February 1969 for a period of 3 years.  Records further show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71H (Personnel Records Specialist).  The highest rank he attained while serving on active duty was specialist five/pay grade E-5.

4.  The applicant's records show that he served in the Republic of Vietnam during the period 4 December 1970 through 9 July 1971.  During his service in the Republic of Vietnam, the applicant was honorably discharged from the Army on 8 February 1971 for the purpose of immediate reenlistment. 

5.  On 9 February 1971, the applicant reenlisted for a period of 6 years.  Records further show that on 31 March 1971, he was approved to receive a lump sum payment of his Variable Reenlistment Bonus as a result of this reenlistment. 

6.  The applicant's records do not show any significant acts of valor during his military service.  However, Item 41 (Awards and Decorations) of the applicant's DA Form 20 (Enlisted Qualification Records) show that the applicant was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and an Overseas Service Bar. 

7.  The applicant's service records reveal a disciplinary history of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period 9 July 1971 through
5 August 1971.  

8.  Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 shows an entry of AWOL during the period 9 July 1971 through 9 August 1971, AWOL during the period 1 November 1971 through 12 March 1972, and confinement during the period 15 March 1972 through 6 April 1972. 

9.  Although the applicant's request for discharge is not available for review, the service records show that the he was pending trial for AWOL on one occasion totaling 133 days of AWOL when his company commander recommended approval of the his request for discharge under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations).  Records further show that  the applicant's battalion commander also recommended approval with an undesirable discharge.

10.  On 7 April 1972, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate.  On 12 April 1972, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued confirms he completed a total of 2 years, 8 months, and 2 days of creditable active military with 187 days of lost time due to AWOL and confinement.

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitation.

12.  In his self-authored statement, the applicant argues that he should not have been allowed to reenlist and that he regrets being AWOL at the time. 

13.  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 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, at the time, an undesirable discharge was normally considered appropriate.

14.  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.

15.  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

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his discharge should be upgraded was carefully considered and determined to be without merit

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows that he accrued 187 days of lost time due to AWOL and confinement.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge.

5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 12 April 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 11 April 1975.  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

__jrm___  __tmr___  __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.



							Jeanette R. McCants
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070002356
SUFFIX

RECON

DATE BOARDED
20070731D
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19720412
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.