RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 September 2007
	DOCKET NUMBER:  AR20070005394 


	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. Michael L. Engle

Analyst

The following members, a quorum, were present:


Ms. Linda D. Simmons

Chairperson

Mr. Frank C. Jones II

Member

Ms. Carmen Duncan

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 honorable.  

2.  The applicant states, in effect, that he served his country well during his first tour of duty from 1967 to 1969.  He went to the Republic of Vietnam and attained the rank of sergeant by the time of his honorable discharge in 1969.  However, things went downhill after his discharge.  He became divorced and decided to join the United States Army again.  He was still having troubles.  He was drinking all the time.  He could not get back into step.  He made mistakes of which he is not proud.  He asks for a second chance and apologizes for his actions.

3.  The applicant provides no additional documentation.

CONSIDERATION OF EVIDENCE:

1.  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 also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  On 22 August 1967, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 11B4O (Light Weapons Infantryman).

3.  The applicant served 10 months in the Republic of Vietnam as a rifleman with the 60th Infantry Regiment.  He was wounded and medically evacuated.  He was awarded the Purple Heart and the Combat Infantryman Badge.  He attained the rank of sergeant.  On 21 August 1969, he was honorably discharged.  He had completed 2 years of creditable active duty service.



4.  On 24 January 1974, the applicant enlisted in the Regular Army for 4 years beginning in the rank of private, pay grade E2.  He was assigned to the Infantry Training Brigade at Fort Polk, Louisiana.  He was awarded military occupational specialty 11B1O (Light Weapons Infantryman).

5.  On 17 May 1974, the applicant was promoted to the rank of specialist four, pay grade E4.

6.  On 7 June 1974, the applicant was assigned for duty as a rifleman with the 35th Infantry Regiment, 25th Infantry Division, in Hawaii.  

7.  On 3 September 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failure to go to his appointed place of duty.  The punishment included a forfeiture of 
$50.00 pay per month for 1 month.

8.  On 2 October 1974, the applicant accepted NJP for being absent without leave (AWOL) for 9 days.  The punishment included reduction to private first class, pay grade E3, and extra duty and restriction for 14 days.

9.  On 4 October 1974, the applicant accepted NJP for 1 day of AWOL on 
4 October 1974.  The punishment included restriction for 7 days.

10.  On 17 March 1975, the applicant accepted NJP for 20 days of AWOL.  The punishment included extra duty and restriction for 30 days.

11.  On 17 September 1975, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, from 29 July to 27 August 1975 (29 days); and from 8 to 9 September 1975 (1 day).  He also was charged for violation of Article 95, breaking arrest on 8 September 1975.

12.  On 22 September 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

14.  On 30 September 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 17 October 1975, the applicant was discharged accordingly.  He had completed a total of 3 years, 6 months and 24 days of creditable active military service and accrued 60 days of time lost due to AWOL.

15.  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 limitations.

16.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

17.   Under the UCMJ, the maximum punishment allowed for violation of Article 95, for breaking arrest is a punitive discharge and confinement for 6 months.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  While the applicant’s first term of active duty service was commendable and he received an honorable discharge.  However, it does not sufficiently mitigate his subsequent misconduct during his second term of active duty service.


4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__LDS ___  __FCJ __  _CD  ___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.





___Linda  D . Simmons__
          CHAIRPERSON




INDEX

CASE ID
AR
SUFFIX

RECON
 
DATE BOARDED
 
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19751017
DISCHARGE AUTHORITY
AR 635-200. . . . .  
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144.7000
2.

3.

4.

5.

6.