RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  06 December 2007
	DOCKET NUMBER:  AR20070010317 


	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. Deyon D. Battle

Analyst

The following members, a quorum, were present:


Ms. Kathleen A. Newman

Chairperson

Ms. Rose M. Lys

Member

Mr. Edward E. Montgomery

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.

2.  The applicant states that when he returned to the United States he went to the hospital because his mother had a heart attack.  He states that he was given some papers from Fort Lewis, Washington; however, he did not know what was on the papers.  He states that at the time, he thought that he had been discharged so he hurried to the hospital to be with his mother.  He states that he got married in June 1972, and that in 1975 he was picked up for being absent without leave (AWOL).  He states that he was taken to Fort Bragg and that he remained there for approximately 3 months.  He states that his discharge papers said that he had either a general discharge or a less than honorable discharge.  He states that he did what he was told to do while he was in the Army and he requests that his discharge papers be changed.  He states that he lost the discharge papers; has been battling Post Traumatic Stress Syndrome from the war; has been in alcohol counseling for 30 years; has discoloration of his skin and is being treated for eczema; and was exposed to Agent Orange while he was in Vietnam.  The applicant concludes by stating that he served his country as a bridge builder while he was in Vietnam and now his country is letting him down.  He states that he would be very thankful if someone could change his discharge papers and send them to him.  He further states that he is totally disabled and receives disability.

3.  The applicant provides no additional documentation in support of his application.

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 12 May 1969, the applicant was inducted into the Army in Charlotte, North Carolina, in the pay grade of E-1.  He successfully completed his training and was awarded the military occupational specialty (MOS) 12A (pioneer).  

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 19 June 1969 for being absent without leave (AWOL) from 14 June 1969 to 17 June 1969.  His punishment consisted of a forfeiture of pay in the amount of $23.00 and 14 days of restriction and extra duty.

4.  The applicant was promoted to the pay grade of E-2 on 12 September 1969 and he was promoted to the pay grade of E-3 on 4 December 1960.  On 20 December 1969, he reenlisted in the Army for 3 years.

5.  On 27 February 1970, he was transferred to Vietnam.

6.  On 22 April 1970, NJP was imposed against the applicant for being AWOL from 5 April 1970 to 21 April 1970.  His punishment consisted of a reduction to the pay grade of E-1 and a forfeiture of pay in the amount of $61.00.

7.  The applicant went AWOL on 9 June 1971 and he remained absent in desertion until he was apprehended by military authorities and returned to military control on 16 May 1975.

8.  On 20 May 1975, the applicant was notified that charges were pending against him for being AWOL from 9 Jun 1971 to 15 May 1975.  He acknowledged receipt of the notification on 21 May 1975 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  Along with his request for discharge, the applicant submitted a statement in his own behalf in which he stated that that he would like to get out of the Army because he needed to get home to his family and to his job.  He stated that he no longer had any use for the military.

9.  The appropriate authority approved the request for discharge on 9 July 1975. Accordingly, on 22 August 1975, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 2 years, 1 month, and 11 days of total active service and he had approximately 3 years, 11 months, and 25 days of lost time due to AWOL.  He was furnished an Undesirable Discharge Certificate.



10.  A review the available records fail to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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 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.

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 the facts of the case.

3.  The applicant's contentions have been noted.  However, they are unsubstantiated by the evidence of record.  The evidence of record shows that he submitted a statement in his own behalf at the time of his discharge requesting to get out of the Army because he needed to get home to his family and his job; and stating that he no longer had any use for the military.  The applicant was absent in desertion for approximately 3 years, 11 months, and 25 days.  Considering the nature of his offense, it does not appear that his undesirable discharge is too harsh.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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

06 December 2007DENY 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.




___Kathleen A. Newman__
          CHAIRPERSON




INDEX

CASE ID
AR20070010317
SUFFIX

RECON

DATE BOARDED
20071206
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.  360
144.0000/ADMINISTRATIVE MATTERS
2.  689
144.7000/REQ  DISCHARGE FTGOS
3.  651
144.6300/AWOL/DESERTION
4.

5.

6.