IN THE CASE OF:	  

		BOARD DATE:	        12 August 2008

		DOCKET NUMBER:  AR20080008053 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was out of his mind during his second period of service.  He had two tours in Vietnam and had experienced things no human should.  His brother was killed, his wife disappeared, and his mother had a complete breakdown.  He was not going back to Vietnam.  He had seen enough. 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 enlisted in the Regular Army on 23 May 1966.  His DD Form 398 (Statement of Personal History) indicated that he had two brothers.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 56B (General Warehouseman).

3.  The applicant arrived in Vietnam for his first tour on or about 17 March 1967 and departed on or about 21 October 1968.

4.  The applicant was honorably discharged on 18 December 1968 and immediately reenlisted on 19 December 1968.  He had been granted a waiver for a 1-day period of being absent without leave (AWOL).

5.  On 29 January 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 10 January to on or about 28 January 1969.

6.  The applicant arrived in Vietnam for his second tour on or about                    14 September 1969.  

7.  On 26 September 1969, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty.

8.  The applicant departed Vietnam on or about 28 August 1970.

9.  On 23 February 1971, the applicant was convicted by a special court-martial of being AWOL from on or about 29 September to on or about 7 December 1970 and from on or about 17 December 1970 to on or about 23 January 1971.

10.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he departed AWOL on 23 April 1971, returned from AWOL on 29 July 1971, and was placed in pre-trial confinement on 30 July 1971.

11.  The court-martial charge sheet is not available.  The applicant’s discharge packet is not available.

12.  On 10 September 1971, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a characterization of service of under other than honorable conditions.  He had completed a total of 4 years, 7 months, and 26 days of creditable active service and had 258 days of lost time.

13.  The applicant’s records contain Department of Veterans Affairs (VA) Progress Notes, dated 30 March 2001, apparently provided when he previously applied to the ABCMR for an upgrade of his discharge to general under honorable conditions (and which the ABCMR denied).  Those notes indicated that the applicant had two brothers, one of whom had served in Vietnam, and he reported a satisfying relationship with his two brothers.  The notes also indicated that he described his mother as being depressed and having been psychiatrically hospitalized.  She had been on psychotropic drugs and in 1966 received electroconvulsive therapy.  VA Progress Notes, dated 21 February 2001, indicated his first marriage ended because his wife got involved with another man.

14.  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.  A characterization of service of under other than honorable conditions is normally considered appropriate.  

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.  

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it is presumed that the applicant’s discharge proceedings were conducted in accordance with law and regulations applicable at the time.

2.  The applicant’s contentions have been carefully considered.  He contended that he was out of his mind during his second period of service, that his brother was killed, that his wife disappeared, that his mother had a complete breakdown, and that he was not going back to Vietnam.  

3.  VA Progress Notes indicated that both of the applicant’s brothers were alive as of 30 March 2001.  The notes also indicated that his mother had been psychiatrically hospitalized and received electroconvulsive therapy in 1966. Therefore, while unfortunate, if she had had another breakdown around 1970/1971, it should not have come as a complete surprise to the applicant.  VA Progress Notes dated February 2001 did indicate his first marriage ended because of marital problems.

4.  It is also noted that the applicant went AWOL three times during his second enlistment (and once, for a 1-day period, during his first enlistment), and received an Article 15 for an additional incident of misconduct.  

5.  Based upon the above, there is insufficient evidence that would warrant granting the relief requested.

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.




      ______xxxx  _______   ___
               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)                                         AR20080008053





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ABCMR Record of Proceedings (cont)                                         AR20080008053



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