IN THE CASE OF:	

	BOARD DATE:	  24 July 2008

	DOCKET NUMBER:  AR20080006250 


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 (UD) be upgraded.

2.  The applicant states, in effect, that he feels that his UD should be upgraded based on his excellent service record while serving in the Republic of Vietnam (RVN), and because the issues for which he was discharged occurred during his early years in the military.

3.  The applicant provides no 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 he was initially inducted into the Army of the United States (AUS) and entered active duty on 20 January 1969.  He continuously served for 2 years until 19 January 1971, at which time he was honorably released from active duty (REFRAD) and transferred to the United States Army Reserve (USAR) Control Group.  The separation document 
(DD 214) he was issued at this time shows he earned the following awards during this period of service:  National Defense Service Medal (NDSM); Bronze Star Medal (BSM) with "V" (Valor) Device; Purple Heart (PH); Combat Infantryman Badge (CIB); Army Commendation Medal (ARCOM); Vietnam Service Medal (VSM); RVN Campaign Medal (RVNCM) with Device (1960); 
2 Overseas Service Bars; and Marksman Marksmanship Qualification Badge with Rifle (M-14) Bar.  Item 18 (Remarks) shows he served in the RVN from 
21 June 1969 through 19 June 1970.

4.  On 12 July 1971, the applicant enlisted into the Regular Army for a period of 
4 years, and entered active duty on the enlistment under review.  His record shows he served in military occupational specialty (MOS) 11B (Light Weapons Infantryman), and that the highest rank he attained while serving on active duty was sergeant (SGT).  

5.  The applicant's Official Military Personnel File (OMPF) contains a Notice of Return of United States Army Members from Unauthorized Absence (DA Form 3836), which shows he departed his unit absent without leave (AWOL) on 
1 March 1972, and was subsequently dropped from the rolls (DFR) of the organization on 2 March 1972.  It further shows he was apprehended and returned to military control on 6 June 1974.

6.  The applicant's OMPF contains a Serious Incident Report (SIR) that indicates on 27 April 1974, he was apprehended by the Michigan State Police and confined to the Macomb County Probate Court Juvenile Home pending filing of criminal charges for rape of an unidentified 15-year old girl.  

7.  The applicant's record contains orders assigning him to the United States Army Personnel Control Facility (USAPCF), Fort Leonard Wood, Missouri, for administration and disposition purposes on 28 April 1974.  The orders confirm that at that time, the applicant had been arrested and was confined by civil authorities based on being charged with contributing to the delinquency of a minor.


8.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  The record does include a separation document (DD Form 214) that shows that on 11 July 1974, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service, and that he received an UD. It also shows he completed 8 months and 10 days of creditable active military service during this enlistment, and that he had accrued 842 days of lost time due to being AWOL.  

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

10.  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.  The separation authority may issue a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member’s record of service; however, an UOTHC discharge was normally considered appropriate for members separated under this provision of the regulation.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded based on his excellent service record in the RVN was carefully considered.  However, this factor is not sufficiently mitigating to support the requested relief. 

2.  By regulation, an UD is normally appropriate for members separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  However, the separation authority may direct a GD or HD be issued if such is merited by the Soldier's overall record during the current enlistment.  In this case, although the applicant's prior service may have been honorable, which was appropriately documented in his first separation document, his record during the enlistment during the enlistment under review documents no acts of valor, significant achievement, or service warranting special recognition that would have supported the issue of a GD or HD by the separation authority at the time of the applicant's discharge, or that would support an upgrade of his discharge at this time.    


3.  Although the applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of his discharge.  Therefore, Government regularity in the discharge process is presumed.  Absent information and/or evidence to the contrary, it is concluded that all requirements of law and regulation were met, and that the rights of the applicant were fully protected throughout the separation process.  

4.  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 this 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)                                         AR20080006250



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ABCMR Record of Proceedings (cont)                                         AR20080006250



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