RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 September 2007
	DOCKET NUMBER:  AR20070005705 


	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

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. Jeffrey C. Redmann

Chairperson

Mr. Dean A. Camarella

Member

Mr. Qawiy A. Sabree

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 his UD, characterized as UOTHC, should be upgraded due to unstable conditions from memories of combat which still occur. 

3.  The applicant provides an additional statement (VA Form 21-4138 [Statement in Support of Claim]).  He describes the events that he alleges occurred during and after his service in Vietnam.  He elaborates on what he recalls to be his combat memories.  He indicates that he was wounded defending his country and was awarded the Purple Heart.  He concludes that he is currently experiencing nightmares that will not quit.  

4.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) in support of his request.

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.  The applicant's record shows he was inducted on 22 April 1968.  The applicant successfully completed basic combat training at Fort Bragg, North Carolina, and advanced individual training at Fort Polk, Louisiana.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 11B, Light Weapons Infantryman.  He was promoted to pay grade E-2 on 22 August 1968.



3.  On 7 August 1968, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 23 June 1968 to 29 June 1968.  His sentence consisted of confinement at hard labor for 6 months and a forfeiture of $68.00 per month for 6 months.

4.  The applicant served in Vietnam from 3 December 1968 to 23 August 1969.  He was awarded the Purple Heart for wounds received in connection with military operations against a hostile force on 30 May 1969 while serving in Vietnam.  This award is shown on his DD Form 214.

5.  On 10 November 1969, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from 28 to 31 October 1969.  His punishment consisted of a forfeiture of pay and 14 days of restriction and extra duty.  

6.  Item 44, of the applicant's DA Form 20, shows that he had additional periods of AWOL from 30 November 1969 to 23 February 1970 and from 25 February 1970 to 15 September 1970. 

7.  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 (Armed Forces of the United States Report of Transfer or Discharge) which shows that on 26 October 1970, he was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He was furnished an undesirable discharge, with his service characterized as UOTHC.  He had a total of 1 year, 7 months, and 20 days of creditable service and 320 days time lost.

8.  The applicant applied to the Army Discharge Review Board (ADRB), on 29 February 2007, for an upgrade of his discharge; however, the ADRB was precluded from accepting his application due to its statue of limitations (15 years). The Board accepted his application (DD Form 149), dated 11 April 2007.

9.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate. 

10.  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.

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

2.  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.

3.  The available evidence shows that the applicant's discharge was based on his several incidents of misconduct, for which he received a special court-martial and nonjudicial punishment.  

4.  The applicant contends, in effect, that his UD, characterized as UOTHC, should be upgraded due to unstable conditions from memories of combat which still occur.  However, an insufficient basis has been established to support his request for an upgrade of his discharge.  His unstable conditions do not support an upgrade of his UD.  

5.  The applicant has not indicated whether he is receiving treatment for the psychological difficulties he alleges to be experiencing; however, he is advised to seek professional assistance for the described conditions from local support agencies in his community.



6.  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 has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__QS____  ___JCR_  __DC____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

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.




_____Jeffrey C. Redmann____
          CHAIRPERSON




INDEX

CASE ID
AR20070005705
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070920
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19701026
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.