RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  1 May 2008
	DOCKET NUMBER:  AR20080002365 


	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.




Director



Analyst
      The following members, a quorum, were present:




Chairperson



Member



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 to a general under honorable conditions discharge.  

2.  The applicant states that he had trouble coping with military life after he returned from Vietnam.  He states that he has had no problems with the law since his discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 11 December 1968 for a period of three years.  After completion of basic combat training and advanced individual training, he was awarded military occupational specialty 63B (wheel vehicle mechanic).  He was advanced to private first class on 15 May 1969.  He served in Vietnam from 15 May 1969 to 12 April 1970.

3.  On 21 January 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being found in an off-limits area and for possessing an unauthorized weapon.  His punishment consisted of a forfeiture of $25.00 for one month.  

4.  On 25 January 1970, the applicant accepted NJP under Article 15, UCMJ for excessive speeding.  His punishment consisted of a forfeiture of $25.00 for one month.  

5.  On 23 June 1970, the applicant accepted NJP under Article 15, UCMJ for being absent without leave (AWOL) from 1 June 1970 to 21 June 1970.  His punishment consisted of a reduction to private, E-2 and 45 days of extra duty.  

6.  On 17 September 1970, the applicant was convicted, pursuant to his plea, by a special court-martial of being AWOL from 6 July 1970 to 2 September 1970.  He was sentenced to confinement at hard labor for 3 months and a forfeiture of $55.00 for 4 months.  

7.  The applicant was arrested on 21 April 1971 in Ripley, Missouri, while in an AWOL status.  He was charged with tampering with a motor vehicle and was sentenced to serve 2 years confinement at the Department of Corrections, Jefferson City, Missouri.  

8.  Item 44 (Time Lost under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) on his DA Form 20 (Enlisted Qualification Record) shows two periods of AWOL from 30 November 1970 through 20 April 1971 and 21 April 1971 through 2 January 1972.

9.  The applicant’s Charge Sheet and request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10 are not available.  

10.  On an unknown date, the unit commander recommended approval of the applicant’s request for discharge with an undesirable discharge.  The unit commander indicated the applicant had demonstrated to his immediate supervisor that he was unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  Also, the unit commander stated the applicant was pending trial for AWOL on one occasion totaling 398 days.  

11.  On 26 January 1972, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an undesirable discharge.

12.  The applicant was discharged from active duty on 1 February 1972 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed a total of 1 year, 7 months, and 22 days of active military service with 549 days of lost time due to AWOL and confinement.  


13.  There is no evidence of record which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

14.  Army Regulation 635-200 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.

15.  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.  In the absence of the applicant's complete chapter 10 discharge proceedings, 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, is presumed to have been administratively correct and in conformance with applicable regulations.  

2.  The applicant’s service records show he received three Article 15s, two of which were imposed while he was in Vietnam, and one special court-martial.  It appears the applicant’s overall record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, his record of service is insufficiently meritorious to warrant a general discharge.

3.  Although the applicant's complete discharge packet is not available, it is presumed the separation authority appropriately directed issuance of an undesirable discharge based on his overall record of service.

4.  The applicant's contentions were noted.  However, there is no evidence submitted or evidence of record which shows the actions taken in this case were in error or unjust.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

XX_____  XX______  XX _____  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.




                       XX_______
                CHAIRPERSON


ABCMR Record of Proceedings (cont)                                         AR20080002365


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