IN THE CASE OF:	  

		BOARD DATE:	        13 AUGUST 2008

		DOCKET NUMBER:  AR20080008285 


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, that his undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant essentially believes that he should be granted an upgrade to his discharge because he has never done anything dishonorable in his life, and volunteered to go to Vietnam because he thought it was the right thing to do.  He also states that he was wounded more than once and served his country.  He further states that he served at Fort Carson, Colorado after he returned from Vietnam, and that while stationed there, his wife called him and told him that on three occasions, his stepfather had tried to molest her.  He continued by stating that he asked for leave for this reason, but was refused each time he asked for leave, but being young and stupid, he went absent without leave (AWOL).  Additionally, he states that he went and got his wife, then they went to Florida and he started working, but that the Federal Bureau of Investigation (F.B.I.) came and arrested him and returned him to military control at Fort Gordon, Georgia.  He also states that he wrote letters to everyone trying to explain why he went AWOL, then some Army personnel came and told him that if he was to sign some papers, he could go home.  He states that he signed the papers and they let him go home, but then he received papers saying that he was given an undesirable discharge.  Additionally, he states that the papers he had signed were waivers, and that if he had known what they were he would not have signed them.  He acknowledged that what he did back then was not real smart on his part, and that he knows going AWOL was not the way to fix problems that may 

arise, but at the time he was very young, and that when you are young, you allow your emotions to guide you rather than good common sense.  He further states that if he had to do it over again, he is sure that he would not have taken the same course of action.

3.  The applicant provides no additional evidence in support of this application. 

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 was inducted into the Army of the United States on 11 May 1966.  He completed basic and advanced individual training and was awarded military occupational specialty (MOS) 82C (Rodman-Tapeman), which was later renamed Field Artillery Surveyor.  He departed for a tour in Germany on 20 October 1966.  On 12 June 1967, he was honorably discharged for the purpose of immediate reenlistment.  On 13 June 1967, he enlisted in the Regular Army for 4 years and an assignment to Vietnam.  He returned to the continental United States from Germany on 20 June 1967.  On 10 August 1967, he departed the continental United States for the Republic of Vietnam, and was assigned to Headquarters and Headquarters Battery, Division Artillery (DIVARTY), 4th Infantry Division.  He was awarded MOS 36K (Field Wireman) in November 1967.

3.  On 3 February 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to report to the Rest and Relaxation Center for his scheduled return flight to Vietnam.  His punishment consisted of an oral reprimand.

4.  On 1 May 1968, the applicant sustained an accidental, self-inflicted gunshot wound to his right foot which was determined to have occurred in the line of duty.
He was subsequently medically evacuated to the 249th General Hospital in 
Japan, then returned to the continental United States on 20 May 1969 and assigned to the Medical Holding Company, Valley Forge General Hospital in Phoenixville, Pennsylvania.  In October 1968, he was reassigned to Fort Carson, Colorado.  

5.  On 20 January 1969, the applicant accepted NJP under Article 15 of the UCMJ for going without authority from his duty section with intent to abandon the same, and for leaving the Fort Carson, Colorado military reservation without proper authority in violation of Headquarters, 5th Signal Battalion Operation Orders 1-69.  His punishment consisted of reduction in rank and pay grade from sergeant (SGT)/E-5 to specialist four (SP4)/E-4, which was suspended until
15 April 1969; forfeiture of $100.00 pay per month for 1 month; and restriction to the company area and chapel for 30 days.  On 25 January 1969, the applicant appealed this punishment and essentially stated that he would never have gone home if he had not misunderstood a statement made by a first lieutenant, and that several other men that were involved in the same field exercise went home and no punishment was given to them.  He also stated that it was unjust to punish him and let the other men get away with it.  However, the Commanding General, 5th Infantry Division denied his appeal.

6.  On or about 3 February 1969, the applicant went AWOL, and was subsequently dropped from the rolls of the Army and classified as a deserter.  He remained in this status until he was returned to military control at Fort Gordon, Georgia on or about 11 April 1969.

7.  On 29 April 1969, the applicant was convicted by a special court-martial for absenting himself without authority from his unit on or about 3 February 1969, and remaining so absent until on or about 11 April 1969.  He was sentenced to be confined at hard labor for 4 months; to forfeit of $45.00 pay per month for 
4 months; and to be reduced to the lowest enlisted grade.  On 6 May 1969, the applicant's sentence was approved and ordered to be duly executed, but the execution of that portion of the sentence which provided for confinement at hard labor for 4 months and forfeiture of $45.00 pay per month for 4 months was suspended for 4 months.  It appears the unexecuted portion was remitted without further action.

8.  On 13 May 1969, a mental health evaluation was conducted on the applicant, and the psychiatrist who performed this evaluation determined that the applicant had no psychiatric disease.  He also cleared the applicant for administrative separation under the provisions of Army Regulation 635-212.


9.  On 23 May 1969, the applicant's commanding officer recommended that he be discharged before the expiration of his term of service under the provisions of Army Regulation 635-212 for unfitness.  He also stated that the applicant's elimination was recommended because of his frequent incidents of a discreditable nature with military authorities.  On 26 May 1969, the applicant's commanding officer notified him that he was recommending him for discharge for the aforementioned reason, and that he was recommending that he receive an undesirable discharge.  He was also advised of his rights, but the record is silent as to what elections the applicant made.  The applicant acknowledged receipt of this notification on 26 May 1969.  

10.  On 20 June 1969, the proper authority approved the applicant's discharge under the provisions of Army Regulation 635-212, and waived further counseling and rehabilitation requirements.  On 26 June 1969, the applicant was discharged accordingly.  His DD Form 214 shows that his characterization of service was under other than honorable conditions, and that he was issued a DD Form 258A (Undesirable Discharge Certificate).

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

12.  The applicant essentially believes that he should be granted an upgrade to his discharge because he has never done anything dishonorable in his life, and volunteered to go to Vietnam because he thought it was the right thing to do.  He also stated that he was wounded more than once and served his country.  He further stated that he served at Fort Carson, Colorado after he returned from Vietnam, and that while stationed there, his wife called him and told him that on three occasions, his stepfather had tried to molest her.  He continued by stating that he asked for leave for this reason, but was refused each time he asked for leave, but being young and stupid, he went AWOL.  Additionally, he stated that he went and got his wife, then they went to Florida and he started working, but that the F.B.I. came and arrested him and returned him to military control at Fort Gordon, Georgia.  He also stated that he wrote letters to everyone trying to explain why he went AWOL, then some Army personnel came and told him that if he was to sign some papers, he could go home.  He stated that he signed the papers, and they let him go home, but then he received papers saying that he was given an undesirable discharge.  Additionally, he stated that the papers he had signed were waivers, and that if he had known what they were he would not have signed them.  He acknowledged that what he did back then was not real smart on his part, and that he knows going AWOL was not the way to fix 

problems that may arise, but at the time he was very young, and that when you are young, you allow your emotions to guide you rather than good common sense.  He further stated that if he had to do it over again, he is sure that he would not have taken the same course.

13.  There is no evidence that the applicant was ever wounded as a result of hostile action during his tour in Vietnam.  Additionally, there is no evidence in the applicant's military records which shows that he ever sought assistance from his chain of command or external advocacy offices such as the chaplain with any problems he was having.

14.  Army Regulation 635-212, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 6a(1) of the regulation provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge was normally considered appropriate.

15.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7a provides, in pertinent part, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

16.  Army Regulation 635-200, paragraph 3-7b provides, in pertinent part, 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 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.  This 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 that his undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that he was wounded more than once in Vietnam was considered, but not found to have any merit.  The only instance of him being shot was when he accidentally shot himself in the foot on 1 May 1969.

3.  The applicant's contention that he essentially received papers saying that he received an undesirable discharge after the fact was rejected.  The applicant acknowledged that his commanding officer was recommending that he receive an undesirable discharge, and the applicant authenticated his DD Form 214 with his signature.  This document clearly shows that he was issued an Undesirable Discharge Certificate at the time of his discharge. 

4.  The applicant's contention that he essentially was young and immature at the time of his service was considered.  Records show that the applicant was 
22 years of age at the time of his AWOL and subsequent desertion.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  While the sincerity of the applicant's claim that his period of AWOL and desertion was due to family problems is not questioned, there is no evidence in the applicant's military records, and the applicant failed to provide any evidence to support this claim.  Although the applicant essentially indicated that he wrote letters to everyone trying to explain why he went AWOL, there is no evidence which shows that he ever requested assistance from his chain of command or external advocacy offices such as the chaplain with any problems he was having.

6.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Although the record is silent as to what elections the applicant made regarding his rights, as he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

8.  The applicant’s record of service shows that he accepted NJP under Article 15 of the UCMJ on two occasions, went AWOL and was subsequently dropped from the rolls of the Army and classified as a deserter, and was convicted by a special court-martial.  Based on the applicant's extensive record of indiscipline, his 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, he is not entitled to either an honorable or general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.



      ___        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)                                         AR20080008285



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008285



7


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1