RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  3 January 2008
	DOCKET NUMBER:  AR20070010232 


	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:


Ms. Ann M. Campbell

Chairperson

Mr. Dean A. Camarella

Member

Mr. Rodney E. Barber

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), with his service characterized as under other than honorable conditions (UOTHC), be upgraded due to his Type II Diabetes, Mellitus, and exposure to Agent Orange.

2.  The applicant states, in effect, that his UD should be upgraded because he was diagnoses with Type II Diabetes, Mellitus, and was exposed to Agent Orange.

3.  The applicant provides no additional documentation 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 enlisted in the Regular Army on 29 July 1969.  He successfully completed basic combat training and advanced individual training at Fort Lewis, Washington.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS) 63C, Wheel Vehicle Repairman.  

3.  The applicant was promoted to pay grade E-4 on 3 May 1970.  He served until he was honorably discharged on 22 May 1970, for immediate reenlistment.  He reenlisted on 23 May 1970.  He served in Vietnam from 26 January 1970 to 15 July 1970.   

4.  The applicant departed absent without leave (AWOL) on 16 July 1970 and remained AWOL until 27 December 1970.


5.  On 18 January 1971, the applicant consulted with counsel and voluntarily requested discharge, for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if an undesirable discharge were issued.  He waived his rights and elected not to submit a statement in his own behalf.   

6.  On 26 February 1971, the separation authority approved the applicant's request for discharge and directed that he be reduced to private, E-1, and he be furnished an undesirable discharge.  

7.  On 26 February 1971, after approval of his request for discharge, the applicant departed AWOL and remained AWOL until 12 March 1971.

8.  On 8 April 1971, the applicant was punished under Article 15, UCMJ (Uniform Code of Military Justice), for being absent without leave (AWOL) from 26 February 1971 to 12 March 1971.  His punishment consisted of a reduction to pay grade E2, a forfeiture of pay, and 14 days extra duty. 

9.  On 5 May 1971, the applicant departed AWOL and remained AWOL until 11 July 1971. 

10.  The applicant was discharged in absentia on 28 June 1971.  He had a total of 1 year, 3 months, and 25 days of net active service and 216 days of time lost due to AWOL.

11.  The applicant’s medical records are unavailable for review. 

12.  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.

13.  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.  The evidence of record shows that the applicant had a pattern of misconduct. He went AWOL on three occasions and received one Article 15, under the UCMJ, for his misconduct.  He accumulated a total of 216 days of time lost due to AWOL.  

2.  It is apparent, from the authority for the applicant's discharge, that charges were preferred against the applicant; however, these documents are not available for review and the applicant failed to provide this information to the Board.  

3.  The evidence shows that the applicant voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, and waived his rights.  His separation was approved.  The evidence even shows after his discharge was approved he departed AWOL and remained so, even after he was discharged in absentia.  He was discharged in the pay grade of E-1 and furnished an undesirable discharge. 

4.  The applicant's claim that his discharge should be upgraded, in effect, due to Type II Diabetes, Mellitus, and exposure to Agent Orange has been carefully considered.  His medical records are unavailable for review.  However, there is no evidence in the available records, and the applicant has provided none, to show that he was diagnosed with any type of medical condition during his time of service or prior to his separation from active duty.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge, characterized as UOTHC, due to his current medical conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks.  







BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___amc__  ___DAC_  _RB____  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.




____  Ann M. Campbell_____
          CHAIRPERSON




INDEX

CASE ID
AR20070010232
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080103
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE
19710628
DISCHARGE AUTHORITY
AR 635-200, chapter 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.