RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  27 March 2008
	DOCKET NUMBER:  AR20070017981 


	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. John T. Meixell

Chairperson

Ms. LaVerne M. Douglas

Member

Ms. Jeanette R. McCants

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 general.   

2.  The applicant states that, since in served in the Republic of Vietnam for a year, he should have the right to be called a veteran before he dies.  

3.  The applicant provides a copy of his 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 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.  On 3 October 1967, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 36K2O (Wireman).

3.  On 26 July 1968, the applicant was assigned for duty as a wireman with the 1st Brigade, 5th Infantry Division, in the Republic of Vietnam.

4.  On 11 July 1969, the applicant returned to the United States for duty at Fort Benning, Georgia.

5.  On 26 March 1970, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) (two specifications) during the periods from on or about 5 January to 12 March 1970; and from on or about 18 March to 
21 March 1970.  His sentence consisted of confinement at hard labor for 
24 days (suspended) and forfeiture of $109.00 pay per month for 1 month.  



6.  On 21 May 1970, the applicant was convicted by a summary court-martial of AWOL (two specifications) during the periods from on or about 9 to 10 April 1970; and from on or about 24 to 29 April 1970.  His sentence consisted of hard labor without confinement for 45 days and forfeiture of $55.00 pay per month for 1 month.  

7.  On 16 July 1970, the applicant was convicted by special court-martial of AWOL (two specifications) during the periods from on or about 30 April to 4 May 1970; and from 5 May to 2 June 1970.  His sentence consisted of reduction to pay grade E-2.

8.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 1 October 1970, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable and that he was issued an Undesirable Discharge Certificate. He had completed 2 years, 5 months and 19 days of creditable active duty and had 190 days of lost time due to AWOL and confinement.

9.  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.

10.  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.

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.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his implied contention that his discharge was unjust.  

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

 __LMD__  __JRM___  __JTM _   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.






__   John T. Meixell   ___
          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.