IN THE CASE OF:	  
	BOARD DATE:	 

	DOCKET NUMBER:  AR20080007020 


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, upgrade of the character of service of his undesirable discharge to a general discharge under honorable conditions.

2.  The applicant states, in effect, he believes the record to be unjust because he was “penalized for absence offenses.”  The applicant also states family pressures, stress, his youth, fear of dying, and emotional state at the time impaired his ability to serve.  The applicant further states that he received the Combat Infantryman Badge and Vietnam Service Medal while serving his country, was granted leave after serving 1 year in Southeast Asia, but was unable to return to duty and was discharged for the good of the Service.

3.  The applicant provides a self-authored statement, dated 1 April 2008; letter from Nancy L. B_______, dated 1 April 2008; letter from Alice J. P____, dated
1 April 2008; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of 17 February 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.  The applicant's military service records show he was inducted into the Army of the United States and entered active duty on 6 May 1970.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's military service records contain a DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated 19 October 1970.  This document shows that non-judicial punishment was imposed by the commander against the applicant for, on or about 1200 hours,
on 30 September 1970, at Fort Lewis, Washington, without proper authority, absenting himself from his unit, to wit:  Transient Company, U.S. Army Overseas Replacement Station, U.S. Army Personnel Center, Fort Lewis, Washington, and remaining absent until on or about 17 October 1970.  The DA Form 2627-1 also shows the applicant did not demand trial by court-martial and that matters in extenuation, mitigation, or defense were not submitted.  The punishment was forfeiture of $66.00 per month for 2 months and reduction to the grade of private (PVT)/E-1.  The DA Form 2627-1 further shows the applicant did not appeal the punishment imposed by the commander in the Article 15 proceedings.

4.  The applicant's military service records contain a DA Form 20 (Enlisted Qualification Record).  Item 6 (Date of Birth) shows the applicant was born on
6 June 1950.  Item 31 (Foreign Service) shows he was assigned overseas to the U.S. Army Pacific (USARPAC) in Vietnam on 22 October 1970.  Item 38 (Record of Assignments), in pertinent part, shows the applicant was assigned to the
23rd Adjutant General Administrative Replacement Detachment (USARPAC), effective 29 October 1970.  This item also shows he was assigned to Company C, 1st Battalion, 52nd Infantry Regiment, 198th Infantry Brigade (Vietnam) as a Team Leader (MOS 11B4O), effective 15 November 1970, and that he was dropped from the rolls (DFR) as a deserter, effective 27 May 1971.  Item 44 (Time Lost Under Section 972, Title 10, United States Code [USC] and Subsequent to Normal Date ETS [Expiration Term of Service]) of the DA Form 20 shows the applicant was absent without leave (AWOL) for 18 days from
30 September 1970 through 16 October 1970; AWOL for 29 days from 28 April 1971 through 26 May 1971; and AWOL for 130 days from 16 June 1971 through 6 January 1972.


5.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Special Processing Battalion, Fort Knox, Kentucky, letter, dated
10 September 1971, subject:  Commander’s Inquiry.  This document shows that the lieutenant colonel serving as Commander, U.S. Army Special Processing Battalion, Fort Knox, Kentucky, documented that the applicant was assigned to the organization from a DFR status on 1 June 1971 and that he again absented himself from the organization and was subsequently DFR on 16 June 1971.

6.  The applicant's military service records contain a DA Form 3545 (Deserter Wanted by the Armed Forces), dated 30 July 1971.  This document shows, in pertinent part, that the applicant absented himself from his unit at 0700 hours on 1 June 1971, was DFR on 16 June 1971 and designated a deserter, and that his return to military control was desired.

7.  The applicant's military service records are absent a copy of the applicant’s administrative separation action.

8.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Special Orders 36, dated 11 February 1972.  These orders show that the applicant was assigned to the U.S. Army Separation Transfer Point, Fort Knox, Kentucky, for discharge under the provisions of Army Regulation 635-200, for the good of the Service, under other than honorable conditions and issued an Undesirable Discharge Certificate, effective 17 February 1972.

9.  The applicant's DD Form 214 shows he was discharged with an undesirable discharge, characterized as under conditions other than honorable on
17 February 1972, under the provisions of Army Regulation 635-200, Chapter 10, with Separation Program Number (SPN) 246, for the good of the Service.  At the time, the applicant was credited with completing 1 year, 3 months, and 19 days net active service.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) shows he was awarded the Combat Infantryman Badge and Vietnam Service Medal.  Item 26a (Non-Pay Periods -Time Lost) shows the applicant had time lost from
30 September 1970 through 16 October 1970, 28 April 1971 through 26 May 1971, and 1 June 1971 through 6 January 1972.  Item 30 (Remarks) shows, in pertinent part, the applicant had 177 days lost under Title 10, USC 972, from
30 September 1970 through 16 October 1970, 28 April 1971 through 26 May 1971, and 1 June 1971 through 6 January 1972.  Item 32 (Signature of Person Being Transferred or Discharged) of the DD Form 214 shows the applicant placed his signature in this item indicating he had reviewed the information recorded on the document.

10.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

11.  There is no evidence showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  In support of his application, the applicant provides the following documents.

     a.  A self-authored statement, dated 1 April 2008, that was previously introduced and summarized in this Record of Proceedings.

     b.  Letter from Nancy L. B_______, dated 1 April 2008, who is the sister of the applicant.  Ms. B________ states that the applicant has always been honest, hard-working, peace loving, courteous, and dependable.  She adds that she feels family pressures, the applicant’s youth, and stress of war all played a significant role in his decision to leave the Army.  Ms. B_______ concludes by stating that she feels the applicant’s performance and attitude were satisfactory during his tour of duty and the character of his discharge should be upgraded.

     c.  Letter from Alice J. P____, 1 April 2008, who states she has known the applicant her entire life and attests that the applicant is honest, hard-working, dependable, loyal, and that  he possesses strong family values.  She adds that she feels outside pressures and the stress of war had an impact on his decision to leave the Army.  Ms. B_______ concludes by stating she feels the applicant’s performance, attitude, and outlook during his tour of duty were more than satisfactory and the character of his discharge should be upgraded.

     d.  DD Form 214, with an effective date of 17 February 1972, that was previously introduced and considered in this Record of Proceedings.

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has 
committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

14.  Army Regulation 635-5-1 (Separation Program Numbers (SPN)) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.

15.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  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.

17.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

18.  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, in effect, that his discharge should be upgraded to an honorable discharge because he believes he was “penalized for absence 
ABCMR Record of Proceedings (cont)                                         AR20080007020



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ABCMR Record of Proceedings (cont)                                         AR20080007020



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