IN THE CASE OF:     

	BOARD DATE:	        24 July 2008

	DOCKET NUMBER:  AR20080008233 


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 an upgrade of his discharge and correction of his records as follows: 

	a.  correction of entries pertaining to lost time (4 April 1969 to 7 April 1969 and 1 May 1969 to 13 June 1969), in Item 30 (Remarks) of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); 

	b.  correction of an entry pertaining to lost time (4 April 1969 to 7 April 1969), in Item 44 (Lost Time) of his DD Form 20 (Enlisted Qualification Record); 

	c.  correction of the entry “28 November 1971, Dropped from Rolls-desertion” in Item 38 Record of Assignment) of his DA Form 20; and 

	d.  correction of Item 22a(3) (Statement of Service-Creditable for Basic Pay Purposes-Total Service) from “2 years and 6 days” to “3 years, 3 months, and 2 days.”

2.  The applicant states that:

	a.  he enlisted on 23 April 1969 and could not have been absent without leave (AWOL) from 4 April 1969 to 7 April 1969;

	b.  he was in basic training during the period 1 May 1969 to 13 June 1969, which is shown as a period of AWOL on his records;    

	c.  he was serving in the Republic of Vietnam on 28 November 1971 and there was no way he could have deserted there; and 

	d.  he entered the Army on 23 April 1969 and was discharged on 25 July 1972, thus serving 3 years, 3 months, and 2 days; not 2 years and 6 days as currently shown on his DD Form 214.  

3.  The applicant states that his records are improper and incomplete.  He remembers that he enlisted on 23 April 1969 and completed boot camp at Fort Bliss, Texas, and completed cook school at Fort Leonard Wood, Missouri, for two months.  He was then sent to Fort Lewis, Washington, for a few days before shipping to Vietnam.  He served as a cook with a Combat Engineer unit in the Republic of Vietnam for 12 months.  He returned to Fort Benning, Georgia, where his troubles started.  He was then sent to Fort Hood, Texas, where he was discharged.  He further adds that he was told at the time that his discharge would show bad conduct and that it would be automatically upgraded to an honorable discharge after 6 months as long as he stayed out of trouble.  He trusted that his bad conduct discharge would be under honorable conditions (general) and did not know otherwise until he tried to sign up for Department of Veterans Affairs (VA) health care at the VA Medical Center in Texas.  He concludes that it does not matter what term is used in his discharge as long as it is not dishonorable and under conditions that would allow him to receive VA benefits.  

4.  The applicant provided the following additional documentary evidence in support of his application:

	a.  DD Form 214, dated 25 July 1972.

	b.  DA Form 2627 (Record of Proceedings Under Article 15, UCMJ), dated 4 August 1969.   

	c.  DD Form 4 (Enlistment Contract-Armed Forces of the United States), dated 23 April 1969. 

	d.  DA Form 20, dated 20 July 1972.

	e.  Special Court-Martial Order Number 64, dated 4 December 1969. 

	f.  Letter, dated 21 May 2007, from the National Personnel Records Center. 




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 records show that he enlisted in the Regular Army for a period of 3 years on 23 April 1969.  He completed basic combat and advanced individual training (AIT) and was awarded military occupational specialty (MOS) 94B (Cook).

3.  On 4 August 1969, while still in training at Fort Bliss, Texas, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being AWOL during the period on or about 5 July 1969 through on or about 21 July 1969.  His punishment consisted of forfeiture of $25.00 pay for one month, 7 days of extra duty, and 7 days of restriction.

4.  Item 44 (Time Lost Under Section 972, Title 10, United States Code) of the applicant DA Form 20 shows the applicant was reported AWOL during the periods 4 April 1969 to 7 April 1969; 1 May 1969 to 13 June 1969; 2 September 1969 to 1 February 1970; 23 November 1971 to 5 July 1972; and 24 July 1972 to 25 July 1972.  He was also reported in confinement from 6 July 1972 to 10 July 1972.   

5.  On 7 October 1969, the applicant pled guilty at a Special Court-Martial, at Fort Bliss, Texas, to one specification of being AWOL during the period on or about 9 August 1969 through on or about 19 August 1969.  The Court-Martial sentenced him to the performance of hard labor for 4 months and forfeiture of $76.00 pay for 6 months.  The sentence was adjudged on 7 October 1969.

6.  On 4 December 1969, the convening authority approved the findings of guilty, but disapproved the applicant's sentence.

7.  On 2 February 1970, the applicant departed his unit, Company D, 1st Battalion, 2nd Brigade, Fort Bliss, Texas, in an AWOL status.  It appears that he was apprehended and returned to military control at Fort Hood, Texas, on 15 April 1970.

8.  On 24 April 1970, the applicant pled guilty at a Special Court-Martial, at Fort Hood, Texas, to one specification of being AWOL during the period on or about 2 February 1970 through on or about 9 April 1970.  The Court-Martial sentenced him to confinement at hard labor for 4 months and forfeiture of $25.00 pay per month for 4 months.  The sentence was adjudged on 24 April 1970, and approved and ordered executed by the convening authority on 4 May 1970.  

9.  Headquarters U.S. Army Garrison Troops, Fort Hood, Texas, Special Orders Number 93, dated 6 May 1970, show the applicant was assigned to the Correctional Holding Detachment, Fort Hood, Texas, effective 4 May 1970.  He was subsequently transferred to the U.S. Army Correctional Training Facility, Fort Riley, Kansas, to serve his sentence.

10.  Headquarters, U.S. Army Correctional Training Facility, Fort Riley, Kansas, Special Court-Martial Orders Number 367, dated 26 May 1970, show that the unexecuted portions of the sentence to forfeiture of pay, pertaining to the applicant, was suspended until 8 July 1970.

11.  Headquarters, U.S. Army Correctional Training Facility, Fort Riley, Kansas, Special Court-Martial Orders Number 470, dated 26 June 1970, show that the unexecuted portion of the sentence to confinement at hard labor and forfeiture of pay, pertaining to the applicant, was remitted, effective 8 July 1970.

12.  On 23 November 1971, the applicant departed his unit at Fort Hood, Texas, in an AWOL status.  He was subsequently dropped from the Army rolls on 28 November 1971.  He was apprehended by civil authorities at Ballinger, Texas, and was returned to military control on 6 July 1972.

13.  On 9 July 1972 (erroneously shown as 19 July 1972), Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 23 November 1971 through on or about 6 July 1972.  

14.  On 11 July 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

15.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

16.  On 20 July 1972, the applicant’s immediate and intermediate commanders recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.   

17.  On 21 July 1972, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 25 July 1972.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with an undesirable discharge, characterized as under conditions other than honorable.

18.  Item 22a(3) of the applicant’s DD Form 214 confirms the applicant had completed a total of 2 years and 6 days of creditable military service.

19.  Item 30 of the applicant’s DD Form 214 shows he had 201 days of lost time under 10 USC, section 972, as follows:  4 April 1969 through 7 April 1969; 1 May 1969 through 13 June 1969; and 2 September 1969 through 1 February 1969.

20.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations. 

21.  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, 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, although an honorable or general discharge is authorized, an undesirable discharge under other than honorable conditions was normally considered appropriate.

22.  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.

23.  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.  With respect to the discharge upgrade, the Army does not have a policy that allows a Soldier's discharge to be automatically upgraded on the condition of remaining without any offenses for a period of 6 months subsequent to a discharge. 

2.  The applicant’s records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant willingly, voluntarily, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows an extensive history of disciplinary problems, including one instance of Article 15, two instances of Special Court-Martial, and several instances of AWOL and/or confinement.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge. 

4.  With respect to correcting the DA Form 20, the ABCMR can take no action on the applicant’s request.  The Board limits corrective action to documents that can be individually reviewed after a Soldier's separation.  Since the DA Form 20 is not normally accessible by individuals other than the Soldier, there is no basis for the Board to correct it.

5.  There is no evidence in the available records and the applicant did not provide any documentary evidence that he served in the Republic of Vietnam.  The evidence of record shows that the applicant departed his unit in an AWOL status on 23 November 1971, and was subsequently dropped from the Army rolls on 28 November 1971.  He was apprehended by civil authorities at Ballinger, Texas, and was returned to military control on 6 July 1972.  He could not have been in Texas and Vietnam at the same time.

6.  With respect to the applicant’s lost time, the evidence of record shows that the applicant was AWOL and/or confined as follows: 

	a.  from 5 July 1969 to 21 July 1969; 17 days of AWOL;

	b.  from 9 August 1969 to 19 August 1969; 11 days of AWOL; 

	c.  from 2 February 1970 to 9 April 1970, 67 days of AWOL;

	d.  from 4 May 1970 to 18 July 1970; 76 days of confinement;  

	e.  from 23 November 1971 to 6 July 1972, 227 days of AWOL (151 days of which was during his 3-year enlistment); and

	f.  from 24 July 1972 to 25 July 1972; 2 days of AWOL.

7.  The applicant entered active duty on 23 April 1969.  He was required to serve 3 years and was supposed to be separated on 22 April 1969.  However, he was discharged on 25 July 1972.  The total period of service from 23 April 1969 to 25 July 1972 is 1,190 days.  During this period, he accrued 400 days of lost time due to AWOL and confinement.  That left him with only 790 days, or 2 years and 2 months of creditable military service.  His DD Form 214 shows 2 years and 6 days.  Therefore, he is entitled to correction of his records to show he completed 2 years and 2 months of creditable military service.

8.  Although the Board does not intend to make the applicant worse off than he was, the periods of lost time shown in Item 30 are incorrect.  The applicant could not have been AWOL from 4 April 1969 to 7 April 1969, as he enlisted on 23 April 
1969.  However, correcting this entry requires correcting the applicant's total lost time.  The applicant accrued 400 days of lost time, not 201 day.  The applicant should not benefit from service he did not perform.  Therefore, Item 30 should be corrected to show the correct periods of lost time.  

9.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional VA representative to inquire about his eligibility for benefits. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__xxx___  __xxx___  __xxx___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by:

	a.  removing the entries "2  0  6" from Items 22a(1), 22a(3), and 22b of the applicant's DD Form 214 and replacing each with the entry "2  2  0"; 

	b.  removing the following entry from Item 30 of his DD Form 214 "Item 26a: 201 days lost under 10 USC 972 from 4 Apr 69 thru 7 Apr 69; 1 May 69 thru 13 Jun 69; and 2 Sep 69 thru 1 Feb 69"; and 

	c.  adding the following entry to Item 30 of his DD Form 214 "Item 26a: 5 July 1969 to 21 July 1969; 9 August 1969 to 19 August 1969; 2 February 1970 to 9 April 1960; and 4 May 1970 to 18 July 1970."






2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading the applicant's discharge and correction of his DA Form 20.


									XXX
	______________________
      	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)                                         AR20080008233



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ABCMR Record of Proceedings (cont)                                         AR20080008233



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