IN THE CASE OF:	  

	BOARD DATE:	  1 JULY 2008

	DOCKET NUMBER:  AR20080005573 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his undesirable discharge under other than honorable conditions be upgraded to a discharge under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, he believes an injustice was done to him during the time that he served in Vietnam.  He states that in July 1969, while driving a tanker, he was injured/wounded in the head and left eye by an enemy explosion/fire and scrap nails.  He further states an application to the "President's Clemency Board" was sent in his behalf in 1975, but he didn't meet the deadline for return signature at that time.

3.  The applicant provides no additional evidence or official documentation 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 military personnel record shows he enlisted in the Regular Army on 22 April 1966 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 63B (Wheel Vehicle Mechanic).

3.  On 28 April 1967, the applicant was discharged to immediately reenlist.  He had served 1 year and 7 days of active service that was characterized as honorable.  On 29 April 1967, he reenlisted for a period of 4 years.

4.  The applicant was assigned to Headquarters and Headquarters Battery, 
2nd Battalion, 320th Artillery in the Republic of Vietnam during the period from 
25 June 1967 to 24 June 1968.

5.  On 26 June 1968, the applicant was awarded the Bronze Star Medal for meritorious service in connection with military operations against a hostile force for the period from 26 June 1967 to 24 June 1968.

6.  The applicant was assigned to C Company (Service and Support), 173rd Support Battalion, 173rd Airborne Brigade in the Republic of Vietnam during the period from 8 June 1969 to 17 July 1970.

7.  On 11 June 1970, the applicant pled not guilty and was found guilty by a summary court-martial of being absent from his unit at Cha Rang Valley, Republic of Vietnam from 1800 hours on 9 April 1970 and remaining so absent until on or about 0615 hours on 10 April 1970.  His sentence consisted of reduction to specialist four and forfeiture of $150 per month for one month.  On 16 June 1970, the convening authority approved the sentence of so much of the sentence as provides for reduction to the grade of specialist four and forfeiture of $148 per month for one month.

8.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he 
was absent without leave (AWOL) during the periods from 9 September 1970 
to 18 October 1970, from 23-24 October 1970, from 25 October 1970 to 
22 November 1970, from 1 December 1970 to 14 February 1971, and from 
25 February 1971 to 15 March 1971.  The DA Form 20 also shows he was confined by military authorities during the period from 23 November 1970 to 
30 November 1970.

9.  The circumstances and charges pertaining to the applicant's periods of AWOL were not available for the Board to review.
10.  The available medical records for the applicant do not show any treatment for a head or eye injury as a result of an enemy explosion/fire or scrap nails.

11.  The applicant's separation processing package was not available for the Board's review.

12.  On 19 April 1971, the applicant was discharged under the provisions of 
Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service and was issued an Undesirable Discharge Certificate.  He had completed 3 years, 5 months, and 27 days of active service during his current period of enlistment that was characterized as under other than honorable conditions.  He had 175 days of time lost.

13.  The applicant's service medical records do not contain any entries concerning a head wound in 1969.

14.  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.

15.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge, under other than honorable conditions, be upgraded to a discharge under honorable conditions or 
an honorable discharge.  He further contends that he was treated unjustly when he was injured/wounded in July 1969 and that an application had been submitted in his behalf for a discharge upgrade in 1975.

2.  There is no official documentation or evidence and the applicant has submitted no evidence that he received a head or eye injury in July 1969.  Therefore, his contention is not supported by the evidence of record.

3.  There is no evidence of record and the applicant has not submitted any evidence that he had previously applied for an upgrade of his discharge.

4.  Although the applicant's complete separation package was not available, in order for him to be discharged under the provisions of Chapter 10 of Army Regulation 635-200, charges would have had to have been preferred against him for an offense for which the authorized punishment includes a punitive discharge. The applicant then had to have voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an undesirable discharge.

5.  Although the applicant's separation package was not available, it is presumed that the Army's administrative processing of the applicant for discharge is correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

6.  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.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

7.  A review of the applicant's record of service shows the applicant did not meet the established standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  The applicant's award of the Bronze Star Medal was noted.  However, his misconduct began 2 years after the period for which he was recognized by that award.  

8.  In view of the above, there is insufficient basis to change the characterization of the applicant's discharge to honorable or under honorable conditions.

9.  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 that requirement.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  __X____  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.



	__________X_____________
      	CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080005573



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ABCMR Record of Proceedings (cont)                                         AR20080005573



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