RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  24 April 2008
	DOCKET NUMBER:  AR20080002767 


	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 an honorable discharge.

2.  The applicant states, in effect, that he had a breach of contract.  He enlisted for three years for a specific advanced individual training (AIT) school and an assignment to Korea.  However, the Army wanted to send him to Vietnam. 

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with the period ending 18 September 1972.

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.  A DA Form 3286-4 (Statement of Enlistment), dated 19 February 1971, shows the applicant enlisted for the high school graduate specialist enlistment option and for training as an aircraft armament repairman and no other options.

3.  The applicant's DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 24 February 1971, shows that he enlisted on 24 February 1971 for a period of 3 years.  He successfully completed basic training and AIT.  He was awarded the military occupational specialty (MOS) 45J (Aircraft Armament Repairman).

4.  On 14 March 1972, the applicant was convicted, pursuant to his plea, by a special court-martial of being absent without leave (AWOL) for the period 
14 January 1972 through 14 February 1972.  His sentence consisted of a forfeiture of $100.00 pay per month for two months and reduction in grade to Private (PVT)/E-1.

5.  Evidence of record shows that the applicant was also AWOL for the periods 12 May 1972 through 6 August 1972 and 8 August 1972 through 30 August 1972.

6.  The applicant's court-martial charge sheet is not available.

7.  The applicant's request for discharge for the good of the service packet is not available.  However, his DD Form 214 shows that he was discharged on 
18 September 1972 under the provisions of chapter 10 of Army Regulation 
635-200 (Personnel Separations) with an undesirable discharge, characterized as under other than honorable conditions.  The applicant completed 1 year,
3 months, and 21 days of creditable active service with 140 days lost due to AWOL and confinement.

8.  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.  At the time, an undesirable discharge was normally considered appropriate.

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 contends a breach of contract existed because the Army changed his assignment from Korea and assigned him to Vietnam.  Evidence of record shows the applicant enlisted for a 3-year term of service for training in MOS 45J.  There is no evidence in the applicant's records and he has not provided any evidence that shows he enlisted for assignment to Korea.  
2.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge.  However, his record shows that he was convicted by a special court-martial and had three instances of AWOL during his military service.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general or an honorable discharge.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX ___  ___XXX_  ___XXX _  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)                                         AR20080002767


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