RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070015965 


	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 J. Fowler

Analyst

The following members, a quorum, were present:


Mr. James B. Gunlicks

Chairperson

Mr. Donald W. Steenfott

Member

Mr. Roland S. Venable

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 be upgraded from undesirable to an honorable discharge.

2.  The applicant states, in effect, that he served in Vietnam and does not understand why he was given an undesirable discharge.  He further states that he was not court-martialed or had any other disciplinary action.

3.  The applicant provides no additional documentation in support of this case.

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 13 January 1970 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11E (Armor Crewman).  

3.  The applicant arrived in Vietnam and was assigned to A Company, 1st Battalion, 77th Armor on or about 9 August 1970.  On 11 April 1971, he was reassigned to the 75th Support Battalion, 1st Brigade, 5th Infantry Division.  On 25 June 1971, he was reassigned to the 56th Support Company.  On 15 July 1971, the applicant departed Vietnam.

4.  On 1 November 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 15 August 1971 through 15 October 1971.

5.  Evidence of record shows that the applicant was AWOL for the period 
30 November 1971 through 20 December 1971.

6.  On 21 August 1970, the applicant accepted NJP under Article 15, UCMJ for failure to be at his appointed place of duty and wrongfully appearing for duty unshaven and in an unclean uniform.

7.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 show that he was discharged on 3 February 1972 for unfitness under the provisions of Army Regulation 635-212.  He was discharged with an undesirable discharge and a characterization of service as under other than honorable conditions after completing 1 year, 8 months, and 27 days of creditable active service with 116 days of lost time due to AWOL and confinement.

8.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 
6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents.

9.  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.  

10.  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's separation processing documents are not available.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.
2.  The applicant contends that he does not understand why he was given an undesirable discharge.  However, evidence of record shows that he received two Article 15s and was AWOL on two occasions.  He had completed 1 year, 
8 months, and 27 days of creditable active service before his separation with a total of 116 days of lost time due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable discharge or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JBG  __  __DWS _  __RSV __  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.




___ James B. Gunlicks _
          CHAIRPERSON




INDEX

CASE ID
AR20070015965
SUFFIX

RECON

DATE BOARDED
6 MARCH 2008
TYPE OF DISCHARGE
UD
DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY
MS. MITRANO
ISSUES         1.
144.0000.0000
2.

3.

4.

5.

6.