RECORD OF PROCEEDINGS
IN THE CASE OF:
BOARD DATE: 11 March 2008
DOCKET NUMBER: AR20070013871
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. Michael L. Engle
Analyst
The following members, a quorum, were present:
Mr. Frank C. Jones II
Chairperson
Ms. Carmen Duncan
Member
Mr. Scott W. Faught
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 to honorable.
2. The applicant states that he had been in a car wreck and was told to stay home until he heard from his unit.
3. The applicant provides a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 14 August 1968, the applicant enlisted in the Regular Army for 2 years. He completed his initial training and was awarded military occupational specialty 11D1O (Armor Crewman).
3. On 20 December 1968, the applicant was placed on orders for assignment to the Republic of Vietnam.
4. On 25 January 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) during the period from 12 to 24 January 1969. The punishment included a forfeiture of $22.00 pay per month for 1 month.
5. On 1 February 1969, the applicant was assigned for duty as a Scout Driver with the 2nd Squadron, 11th Armored Cavalry Regiment, in the Republic of Vietnam. On 30 March 1969, he was returned to the United States on emergency leave.
6. Records show the applicant was AWOL from 15 to 18 April 1969, but do not show that he was punished.
7. On 5 February 1971, the applicant was convicted by a general court-martial of AWOL from on or about 13 September 1969 to on or about 9 December 1970. His sentence consisted of confinement at hard labor for 4 months; a forfeiture of $50.00 pay per month for 6 months; and reduction to private, pay grade E-1. He served 58 days in confinement.
8. On 28 August 1971, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 27 April to on or about 24 August 1971.
9. The discharge packet is missing from his military record. However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 23 November 1971, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service. His service was characterized as under other than honorable conditions. He had completed 1 year, 3 months, and 8 days of creditable active duty and had to total of 732 days of lost time due to AWOL and confinement.
10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
11. 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.
12. The UCMJ, in pertinent part, provides for a punitive discharge for violation of Article 86, AWOL of more than 30 days.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.
2. Notwithstanding the applicant's assertion that he was told to stay home, there is no available evidence to show that he had any mitigating circumstances or that his AWOL was a reasonable solution to them.
3. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
4. 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
__ FCJ __ __CD ___ __SWF __DENY APPLICATION
BOARD DETERMINATION/RECOMMENDATION:
The Board determined that 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.
____ Frank C. Jones II __
CHAIRPERSON
INDEX
CASE ID
AR
SUFFIX
RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .
DISCHARGE REASON
BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
ISSUES 1.
2.
3.
4.
5.
6.
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