RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  17 April 2008
	DOCKET NUMBER:  AR20080000776 


	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.









      The following members, a quorum, were present:













	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 (UD) be upgraded to an honorable discharge (HD).    

2.  The applicant states, in effect, that he was young at the time and after having served in the Republic of Vietnam (RVN), he needed some time off when he returned to the United States.   

3.  The applicant provides no additional documentary evidence in support of his application.  

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's record shows that he enlisted in the Regular Army and entered active duty on 24 November 1967.  He was trained in and awarded military occupational specialty (MOS) 11E (Armor Crewman), and specialist four (SP4) is the highest rank he attained while serving on active duty.  

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows he served in Germany from 23 May 1967 through 28 August 1968, and in the RVN from 
9 October 1968 through 8 October 1969.  Item 41 (Awards and Decorations) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM); Vietnam Service Medal (VSM); RVN Campaign Medal with Device (1960); Bronze Star Medal (BSM); 2 Overseas Service Bars, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that he accrued 
267 days of time lost over six separate periods of being absent without leave (AWOL) between 10 March 1970 and 14 May 1971, and three periods of confinement between 16 May and 30 June 1971.
5.  The applicant's record contains BSM Orders and Citation that confirm he was awarded the BSM for meritorious service in the RVN during the period October 1968 through September 1969.  

6.  The applicant's disciplinary record includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two separate occasions, and his conviction by a Special Court-Martial (SPCM).  

7.  On 20 March 1970, the applicant accepted NJP for being AWOL for 6 days between 10 and 16 March 1970.  His punishment for this offense was a reduction to private first class (PFC), which was suspended.  

8.  On 4 November 1970, the applicant accepted NJP for being AWOL between 
4 August and 25 September 1970.  His punishment for this offense was a reduction to PFC, a forfeiture of $80.00 (suspended), and 45 days of restriction and extra duty (all but 14 days suspended).  

9.  On 7 June 1971, an SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 5 February 1970 through on or about 15 May 1971.  The resultant approved sentence was confinement at hard labor for 2 months (excess of 45 days suspended), reduction to private/E-1 (PV1), and forfeiture of $75.00 per month for 2 months.  

10.  On 11 June 1971, the unit commander submitted a recommendation that the applicant be discharged under the provisions of Army Regulation 635-212, by reason of unfitness, and that he be issued a general, under honorable conditions discharge (GD).  The unit commander cited the applicant's propensity for absenting himself without leave despite attempts to rehabilitate him as the basis for taking the action.  

11.  On 17 June 1971, the commander of the Personnel Control Facility, Fort Belvoir, Virginia, recommended approval on the applicant's discharge and recommended he receive a GD.  

12.  On 25 June 1971, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-212, by reason of unfitness, and directed the applicant receive an UD.  On 23 July 1971, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued shows he completed a total of 2 years, 11 months, and 3 days of creditable active military service, and that he accrued 267 days of time lost due to AWOL and confinement.  

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.   

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  Although an UD was normally considered appropriate for members separated by reason of unfitness, the separation authority could issue a GD or HD if warranted by the member's overall record of service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was young at the time, and that he served honorably in the RVN and just needed time upon his return to the United States was carefully considered, and found to have merit.  Although the applicant's record confirms his separation processing was accomplished in accordance with the applicable regulation, it appears the recommendations of his immediate unit commander and the PCF commander that he receive a GD were supported by the applicant's overall record of service.  

2.  The evidence of record confirms that prior to his record of AWOL-related misconduct, which began on 10 March 1970, the applicant had completed almost 2 1/2 years of incident free honorable service, which included 17 months of overseas service in Germany, and completion of a combat tour in the RVN, for which he earned the BSM.  Although the applicant's misconduct clearly diminished the overall qualify of his service below that warranting an HD, his overall record of service is sufficiently meritorious to support an upgrade of his UD to a GD in the interest of equity.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__TEK   _  __JLP  __  __DWT__  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION


BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing that his service was characterized as "Under Honorable Conditions" and that he was issued a GD; and by providing him a correction to his separation document that reflects this change.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his UD to an HD.




      _____TSK                ____
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080000776


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DEPARTMENT OF THE ARMY
BOARD FOR CORRECTION OF MILITARY RECORDS
1901 SOUTH BELL STREET 2ND FLOOR
ARLINGTON, VA  22202-4508