RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 December 2007
	DOCKET NUMBER:  AR20070010486 


	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. Linda D. Simmons

Chairperson

Ms. Eloise C. Prendergast

Member

Mr. James R. Hastie

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 an upgrade of his discharge.

2.  The applicant states that after serving in the Republic of Vietnam, he came home with an attitude.  He tried to complete his military service but could not cope with himself or anyone around him, so he went absent without leave (AWOL).  He kept going back to rehabilitation, but as soon as he started to get a hold of his life, things would fall apart again.  He further states that he could not stand his life and even thought of suicide.  By the time he sought help from his current wife, he had been AWOL so many times that when he was offered the chance to get out, even with an undesirable discharge, he took it right away.  He concludes that he now regrets his actions. 

3.  The applicant provides a copy of his Honorable Discharge Certificate from the Texas Army National Guard, dated 1 March 1989, 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.  The applicant's records show that he was inducted into the Army of the United States on 16 November 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  His records further show that he reenlisted in the Regular Army on 10 October 1969.  The highest rank he attained during his military service was specialist four/pay grade E-4 (Temporary).

3.  The applicant's records further show that he served in the Republic of Vietnam during the period 17 April 1968 through 24 April 1969.  His awards and decorations included the National Defense Service Medal, the Vietnam Campaign Medal with 1960 Device, the Vietnam Service Medal, and two Overseas Bars.  The applicant's records do not show any significant acts of valor during his military service.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 7 August 1968, for vacating his post and being found in the enlisted club consuming alcohol on 6 August 1968.  His punishment consisted of reduction to the grade of private/E-1 (suspended for 30 days) and 14 days of extra duty.

	b.  on 3 February 1969, for disrespecting a noncommissioned officer and disobeying a lawful order on 3 February 1969.  His punishment consisted of reduction to the grade of private first class/E-3 and 14 days of extra duty.

	c.  on 17 March 1969, for being found sleeping upon his post on 15 March 1969.  His punishment consisted of reduction to the grade of private/E-2 (suspended for 30 days), forfeiture of $24 pay, and 14 days of extra duty.

5.  On 18 November 1969, the applicant pled guilty at a Summary Court-Martial to one specification of grabbing another Soldier and throwing him against a wall-locker on 30 October 1969.  The Court sentenced him to reduction to the grade of private/E-1 and forfeiture of $140 pay for one month.

6.  On 14 March 1970, the applicant pled guilty at a second Summary Court-Martial for one specification of being AWOL during the period on or about 3 February 1970 through on or about 4 March 1970.  The Court sentenced him to confinement at hard labor for 30 days and forfeiture of $30 pay for one month.

7.  On 19 March 1973, Court-Martial charges were preferred against the applicant for being AWOL during the period on or about 16 February 1971 through on or about 15 March 1973.

8.  On 20 March 1973, 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 a discharge under other than honorable conditions discharge if his request was approved, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by Court-Martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).
9.  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 of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a dishonorable discharge.  He further acknowledged he understood that if the 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.  The applicant elected not to submit a statement on his own behalf.

10.  On 12 March 1973, the immediate commander recommended approval of the applicant’s request.  In his comment, the immediate commander stated that the applicant had been personally interviewed and that rehabilitation would not be in the best interest of the applicant or the Army.  He further recommended an undesirable discharge.

11.  On 4 April 1973, the intermediate commander concurred with the immediate commander’s comments and recommended the applicant be discharged with an undesirable discharge.

12.  On 4 April 1973, the separation authority approved the applicant's request for discharge and directed that he receive an Undesirable Discharge Certificate and be reduced to the grade of private/E-1.  On 9 April 1973, 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 3 years, 1 month, and 27 days of creditable active military service with 819 days of lost time due to AWOL and confinement.

13.  There is no indication in the applicant's records that he applied to the Army Discharge Review Board for an upgrade of his discharge.

14.   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.



15.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  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 contends that he is entitled to an upgrade of his discharge.

2.  There is no evidence in the applicant's record that he suffered any coping difficulties during his military service or that his inability to cope upon returning from the Republic of Vietnam contributed to his repeated patterns of misconduct and indiscipline.  The records further do not show that the applicant addressed any adjustment, coping, or transition issues with his chain of command or with any supporting facilities at the installation to which he was assigned.  

3.  The evidence of record shows that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with legal counsel, the applicant voluntarily, and in writing, requested separation from the Army under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by a Court-Martial.  By doing so, the applicant admitted guilt to the offense of being AWOL.  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.

4.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  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 did not submit evidence that would satisfy that requirement.  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.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__lds___  __ecp___  __jrh___  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.




							Linda D. Simmons
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070010486
SUFFIX

RECON

DATE BOARDED
20071204
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19730409
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.