IN THE CASE OF:	  

		BOARD DATE:	        29 July 2008

		DOCKET NUMBER:  AR20080007479 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, at the time of his discharge he was not properly advised by counsel and was court-martialed.  He states that he did not finish his tour in Vietnam because his mother was ill at that time.  The applicant was approved for leave and his intention was to return but his family was in a difficult situation.  The applicant states that he went to the Red Cross and the Adjutant General at Fort Hood, Texas but got no assistance.  He was told to go home and wait for word from the Army.  

3.  The applicant further states that he did not hear from the military again until he was picked up by Military Police and taken to Fort Hood for processing.  There a counselor informed him of all the consequences of his discharge and informed him that he could have his discharge upgraded to an honorable discharge after a certain amount of time.  But the attorney did not look at the papers showing his situation nor did he ask him if he had anything to protest about the general court-martial.  All they did was ask him to sign papers and sent him home.

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) with the ending period 10 November 1975; Headquarters, III Corps and Fort Hood Special Orders Number 220, dated 5 November 1975; a DA Form 
137 (Installation Clearance Record), dated 18 November 1970; an undated Administrative Discharge Sheet; a Request for Discharge for the Good of the Service letter; a letter from the Cherokee County Chapter of The American Red Cross, dated 25 May 1971; a letter from the Stripling Clinic, Jacksonville, Texas, dated 25 May 1971; and three letters of support from an acquaintance. 

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 was inducted into the Army on 4 May 1970 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 13B (Field Artillery Crewman).  

3.  The applicant arrived in Vietnam and was assigned to A Battery, 2nd Battalion, 32nd Artillery on or about 18 September 1970.  He was granted ordinary leave from Vietnam in May 1971.

4.  The applicant provided a letter from the Cherokee County Chapter of The American Red Cross, dated 25 May 1971.  The letter shows that the Cherokee County Chapter of The American Red Cross contacted the Red Cross Office at Fort Hood, Texas and the applicant was advised to turn himself into Fort Hood as soon as possible since he was absent without leave (AWOL).

5.  The applicant provided a letter from a physician at the Stripling Clinic, Jacksonville, Texas, dated 25 May 1971.  The physician stated that the applicant's mother had a heart condition and was unable to do any hard work.  The physician commented that the applicant should be allowed to be with her for a couple of weeks until she improved.

6.  A DD Form 458 (Charge Sheet), dated 15 October 1975, shows charges were preferred against the applicant for being absent without leave (AWOL) for the period 18 May 1971 through 7 October 1975.

7.  On 15 October 1975, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

8.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA); and that he may be 
deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  

9.  The applicant submitted a statement on his own behalf that stated that he could not adapt to military life and could not get along with service members.  His nerves were bad and military life was not agreeable with him.  The applicant further stated that his father was unable to work and he had to help him at home with six brother and sisters.

10.  On 24 October 1975, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 10 November 1975, the applicant was discharged with an undesirable discharge, with service characterized as under other than honorable conditions.  He completed a total of 1 year, 1 month, and 18 days of creditable active service with 1603 days of lost time due to AWOL.

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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.   

12.  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.  

13.  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.  Evidence of record shows that the applicant was approved for ordinary leave from Vietnam and that the Adjutant General at Fort Hood, Texas may have told him to go home and wait for word from the Army.  However, there is no evidence and the applicant has not provided evidence that shows he made any reasonably prudent efforts to contact military authorities during his 4-year period of absence concerning his status.  It is unfortunate that the applicant's mother was ill at that time and that his family faced difficulties; however, the applicant was not authorized an extended excused absence.  Therefore, there is no basis for this argument.  

2.  Evidence of record shows that the applicant had a total of 1 year, 1 month, and 18 days of creditable active service with 1603 days of lost time due a lengthy AWOL.  Based on the applicant’s misconduct his record of service did not meet the regulatory standard of satisfactory service.  In the absence of a record of satisfactory service, the applicant is not entitled to a general or honorable discharge.  

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

4.  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

___xx___  ___xx __  __xx ___  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.




      ___xxxxxxx   ___
               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)                                         AR20080007479





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007479



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1