RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        12 February 2008
      DOCKET NUMBER:  AR20070013538


      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:

|     |Ms. Kathleen A. Newman            |     |Chairperson          |
|     |Mr. Jose A. Martinez              |     |Member               |
|     |Ms. Susan A. Powers               |     |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 undesirable discharge be upgraded.

2.  The applicant states that he was an only child, overly protected and
barely aware that a war was going on.  He was the youngest in a group of
draftees.  His first duty station was where he learned of Vietnam, of the
peoples’ disdain for the American Soldier, of drugs, and of the politics of
the era.  Being very impressionable, his priorities were altered and he
wanted out.  His parents encouraged him to get out by retaining civilian
counsel.  He was encouraged to be undesirable and ultimately signed a
request for chapter 10 on the assumption that it was nonpunitive and
administrative in nature.  As an adult, his views are, of course, very
different.  He lives by the philosophy “that every circumstance has an
issuing consequence.”  He states that the Department of Veterans Affairs
(VA) provides him with all his post-cardiac care and they are more than
gracious, but on occasion the character of his discharge is questioned.  He
agrees that his conduct was misguided and irresponsible but certainly not
criminal.

3.  The applicant provides two character references and his DD Form 214
(Armed Forces of the United States Report of Transfer or Discharge) for the
period ending 6 August 1970.

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 was born on 1 March 1950.  He enlisted in the Regular
Army on 8 March 1968 for 3 years for training in aircraft maintenance.  He
completed basic combat training and advanced individual training and was
awarded military occupational specialty (MOS) 67A (Aircraft Maintenance
Crewman).  He was assigned to Fort Carson, CO on 30 August 1968.

3.  The applicant was honorably discharged on 9 December 1968.  On
    10 December 1968, he immediately reenlisted for 4 years with assignment
to   the 3d Battalion, 65th Artillery within or near Cleveland, OH (and
guaranteed a minimum of 12 months in the initial area of assignment).

4.  On 15 July 1969, the applicant was convicted by a summary court-martial
of being absent without leave (AWOL) from on or about 3 to on or about 19
June 1969 and from on or about 23 to on or about 27 June 1969.  He was
sentenced to hard labor without confinement for 30 days and to forfeit
$82.00 pay per month for one month.

5.  On 21 November 1969, the applicant was convicted by a special court-
martial of being AWOL from on or about 16 July to on or about 21 August
1969.  He was sentenced to confinement at hard labor for 4 months
(suspended for 6 months), to forfeit $82.00 pay per month for 4months, and
to be reduced to Private, E-1.

6.  On 6 February 1970, the applicant completed a psychiatric evaluation.
He was diagnosed with having an inadequate personality.  He was found to be
mentally responsible, able to distinguish right from wrong and to adhere to
the right, and to have the mental capacity to understand and participate in
board proceedings.

7.  On or about 7 July 1970, the applicant completed a separation physical
and was found qualified for separation.

8.  Court-martial charges were preferred against the applicant charging him
with two specifications of AWOL, from on or about 7 December 1969 to on or
about   6 January 1970 and from on or about 19 March to on or about 24 June
1970.

9.  On 7 July 1970, after consulting with legal counsel, the applicant
voluntarily requested a discharge under the provisions of Army Regulation
635-200, chapter 10 for the good of the service in lieu of trial by court-
martial.  He stated that he was not subjected to coercion with respect to
his request for discharge, and he had been advised of the implications that
were attached to it.  He understood that he could be discharged under other
than honorable conditions and furnished an Undesirable Discharge
Certificate.  He understood that, as a result of the issuance of such a
discharge, he would be deprived of many or all benefits administered by the
VA, and that he might be deprived of his rights and benefits as a veteran
under both Federal and State law.  He submitted no statement in his own
behalf.

10.  On 6 August 1970, the appropriate authority approved the applicant’s
request and directed he receive an Undesirable Discharge Certificate.
11.  On 6 August 1970, the applicant was discharged, in pay grade E-1,
under the provisions of Army Regulation 635-200, chapter 10, for the good
of the service with a characterization of service of under other than
honorable conditions.  He had completed a total of 1 year and 8 months of
creditable active service and had 272 days of lost time.

12.  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 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.

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.

14.  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 was 18 years old when he enlisted in the Regular Army.
He contended that it was at his first duty station where he learned of
Vietnam, of the peoples’ disdain for the American Soldier, of drugs, and of
the politics of the era. He contended that he was very impressionable, and
he wanted out.  However, he had been at his first duty station for four
months when he opted to reenlist.  It is not credible to believe that he
did not know about Vietnam, of the peoples’ disdain for the American
Soldier, of drugs, or of the politics of the era at the time he reenlisted.

2.  The applicant’s voluntary request for separation under the provisions
of Army Regulation 635-200, chapter 10, for the good of the service to
avoid trial by court-martial, was administratively correct and in
conformance with applicable regulations.  There is no indication that the
request was made under coercion or duress, and he acknowledged that it was
not.

3.  When the applicant requested discharge, he also acknowledged that he
understood that, as a result of the issuance of an undesirable discharge,
he would be deprived of many or all benefits administered by the VA.
Therefore, he should not be surprised if “on occasion the character of his
discharge is questioned.”

4.  The applicant contended that his conduct was misguided and
irresponsible but certainly not criminal.  To the contrary, his conduct was
an offense for which he could have been convicted by court-martial (a
Federal conviction) and for which he could have received a punitive
discharge.  When his request for discharge in lieu of trial by court-
martial was approved, he was given an administrative, nonpunitive
discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

________  ________  ________  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

__kan___  __jam___  __sap___  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.




                                  __Kathleen A. Newman__
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070013538                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |20080212                                |
|TYPE OF DISCHARGE       |UD                                      |
|DATE OF DISCHARGE       |19700806                                |
|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.                      |                                        |


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