IN THE CASE OF:	

		BOARD DATE:	19 August 2008  

		DOCKET NUMBER:  AR20080006755 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that he was discharged for going absent without leave (AWOL) twice while in Vietnam.  He contends that many people went AWOL in Vietnam and were never punished.  He believes that he was prosecuted because he was black and he believes that he was suffering from post-traumatic stress disorder (PTSD) at the time but did not know it.

3.  The applicant does not provide any additional documentation in support of his request.

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 records show that he enlisted in the Regular Army on 27 September 1967, was awarded the military occupational specialty of field radio mechanic, served in Vietnam, and was honorably discharged on 10 May 1969 as an overseas returnee.  During that time he accepted nonjudicial punishment (NJP) under Article 15, UCMJ, twice for leaving his appointed place of duty without proper authority, failure to obey a lawful order, and leaving his post prior to being relieved as a sentinel from an area designated as authorized entitlement to special pay for duty subject to hostile fire. 

3.  The applicant enlisted again on 25 June 1969 and served in Vietnam from 31 July 1969 to 26 April 1970.

4.  During this enlistment, the applicant accepted NJP three times for failure to go at the time prescribed to his appointed place of duty, failure to perform his duties (two charges), and disobeying a lawful order.

5.  On 8 January 1971, court-martial charges were preferred against the applicant for disobeying a lawful command, disobeying a lawful order, and being absent without leave (AWOL) from 19 January to 8 March 1971.

6.  On 17 March 1971, the applicant submitted a request for discharge in lieu of court-martial for the good of the service.  In that request he acknowledged that he could receive an undesirable discharge, that would be deprived of many or all Army benefits, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 18 March 1971, the applicant was given a psychiatric evaluation and was found to be free of psychiatric disorders.  The psychiatrist found the applicant to be rational, coherent, and oriented to time, place and person.  The psychiatrist stated that there was no indication of psychosis or severe neurosis.

8.  On 22 March 1971, the applicant submitted a request to be issued an honorable or general discharge.  He cited the fact that he was serving on his second enlistment and that he had served in Vietnam for 23 months.

9.  On 7 April 1971, the applicant’s request was approved and it was directed that he be furnished an Undesirable Discharge Certificate.

10.  Accordingly, on 23 April 1971 the applicant was issued an Undesirable Discharge Certificate.

11.  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.

12.  On 24 November 1972, the Army Discharge Review Board denied the applicant’s request to upgrade his discharge.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant did, in fact, go AWOL twice in Vietnam, he received NJP on several other occasions for many other offenses.

2.  When the applicant requested discharge in lieu of court-martial, his charges included disobeying a lawful command and disobeying a lawful order as well as being AWOL.

3.  The applicant was given a psychiatric evaluation prior to being discharged and was found to be free of any psychiatric conditions.

4.  There is no evidence or indication that the applicant’s race had any bearing on his discharge.

5.  The applicant had a long history of repeated acts of misconduct which culminated in his violation of three offenses punishable under the UCMJ.  In view of this history, an undesirable discharge would appear appropriate.

6.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20080006755



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ABCMR Record of Proceedings (cont)                                         AR20080006755



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