RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  15 January 2008
	DOCKET NUMBER:  AR20070011773 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Curtis L. Greenway

Chairperson

Mr. Joe R. Schroeder

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 that his discharge under other than honorable conditions (UOTHC) be upgraded to honorable or at least general under honorable conditions.

2.  The applicant states that he was suffering from severe depression after returning from his second tour in Vietnam.  He informed his superiors that he was having nightmares and was feeling more depressed than he had ever felt in his life.  He was being consumed by thoughts of what had transpired in Vietnam.  He requested an audience with the Secretary of the Army concerning his inability to mentally withstand the rigors of the Army at that particular time.  In an attempt to keep from having a nervous breakdown in front of his troops, he requested a hardship discharge but was denied.  He is applying for Agent Orange registration.

3.  The applicant provides three DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge).  He also provides a letter, dated            23 November 1973.

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 enlisted in the Regular Army on 28 June 1961.  He completed basic training and advanced individual training and was awarded military occupational specialty (MOS) 441.10 (later redesignated MOS 55B) (Ammunition Storage Specialist).


3.  The applicant was honorably discharged on 27 June 1964 and immediately reenlisted on 28 June 1964.

4.  The applicant served in Vietnam from 28 August 1965 through 1 September 1966 as a 55B2O ammunition supply specialist.

5.  The applicant was honorably discharged on 27 June 1967 and immediately reenlisted on 28 June 1967.  He was honorably discharged on 17 February 1970 and immediately reenlisted on 18 February 1970 for 6 years.

6.  The applicant served in Vietnam from 28 May 1970 through 23 April 1971 as an 11B4O (Light Weapons Infantryman) squad leader and as a 55B4O section chief.

7.  On 1 October 1973, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave from on or about 4 September to on or about 18 September 1973.

8.  By letter dated 23 November 1973, Fort Stewart, GA was granted the authority to attach the applicant to that installation pending submission and decision on his application for compassionate reassignment or hardship separation.

9.  In a statement dated 30 January 1975, the First Sergeant of the unit to which the applicant was attached stated that, to the best of his knowledge, when the applicant reported in about 30 November 1973 the first sergeant authorized him five days to gather the necessary paperwork to process his application for compassionate reassignment.  When the applicant did not return on 5 December 1973, he was placed in an AWOL status.

10.  On 31 March 1976 court-martial charges were preferred against the applicant charging him with being AWOL from on or about 5 December 1973 to on or about 31 March 1976.

11.  The applicant’s discharge packet is not available.

12.  On 12 May 1976, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, conduct triable by court-martial, with a discharge UOTHC.  He had completed a total of 12 years,             4 months, and 24 days of creditable active service and had 861 days of lost time.


13.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.

14.  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.  

15.  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.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant contended that he was suffering from severe depression after returning from his second tour in Vietnam; however, he provided no evidence and there is no evidence of record to show he sought treatment for depression.  

3.  The applicant contended that he requested a hardship discharge but was denied; however, the evidence of record shows that he went AWOL before submitting an application for hardship discharge or compassionate reassignment. He provided no evidence to the contrary.

4.  There is insufficient evidence to show that the applicant’s discharge UOTHC was unjust or inequitable.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__clg___  __jrs___  __qas___  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.




__Curtis L. Greenway__
          CHAIRPERSON




INDEX

CASE ID
AR20070011773
SUFFIX

RECON

DATE BOARDED
20080115
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19760512
DISCHARGE AUTHORITY
AR 635-200, ch 10 
DISCHARGE REASON
A70.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.