IN THE CASE OF:	  

		BOARD DATE:	        9 September 2008

		DOCKET NUMBER:  AR20080008725 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that at the time of his third enlistment following his tour in Vietnam he was not in his right frame of mind when making certain decisions.  The applicant states, "I believe serving a total of 13 years in the Army with good discharges might account for something.  Making one mistake leading to an undesirable, I feel was unjust."

3.  The applicant provides no additional evidence.

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 19 June 1962.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 520.00 (Utilities Worker).  On 5 June 1965, he was honorably released from active duty after completing 2 years, 11 months, and 17 days of creditable active service with no lost time.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his remaining military service obligation.  

3.  The applicant enlisted in the Regular Army on 18 September 1969.  He arrived in Vietnam and was assigned to the 511th Engineer Company on 
15 March 1971.  The applicant was honorably discharged on 11 July 1971 and immediately reenlisted on 12 July 1971 for a 6-year term of service.  He departed Vietnam on 16 December 1971.

4.  On 30 November 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period from 3 November 1972 through
15 November 1972.

5.  On 7 December 1972, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period from 5 December 1972 through 7 December 1972.

6.  The applicant's records show that he was AWOL on 10 January 1973.

7.  On 10 May 1973, the applicant was convicted, pursuant to his plea, by a summary court-martial of being absent from his post and for being AWOL from 18 April 1973 through 19 April 1973.  His sentence consisted of a forfeiture of $175.00 pay per month for one month and 45 days extra duty.

8.  On 18 April 1974, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period from 7 February 1974 through 5 March 1974.

9.  On 29 January 1975, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unfitness.  The reason cited by the commander was the applicant had displayed an established pattern of AWOL and failure to honor his financial commitments.  The applicant was assigned to his unit to be reclassified in a different MOS.  Since the applicant's assignment to the unit no attempts were made to rehabilitate him as elimination was deemed appropriate.


10.  On 30 January 1975, the applicant underwent a mental status evaluation.  It was determined that he could distinguish right from wrong and adhere to the right, that there were no disqualifying mental or physical defects sufficient to warrant disposition through medical channels, and that the applicant had the mental capacity to understand and participate in board proceedings.

11.  On 5 February 1975, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant declined counsel and waived his right to be heard by a board of officers.  

12.  The applicant submitted a statement on his own behalf that stated, in effect, after his tour in Vietnam he was assigned to Fort Riley, Kansas.  Since then he had lost his wife, two cars, and any desire to perform as a Soldier.  He received a P-3 profile and had to work against it many times and being in the Kansas climate caused him to be doped up on asthma medicine in order to breathe properly.  He was sent before a reclassification board to get out of his combat MOS but someone had forged his signature resulting in him being put into another combat MOS.  The applicant stated that he had no more pride and refused to perform as a Soldier and that he could not get out of debt as long as he was in the Army.

13.  On 24 February 1975, the appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unfitness.  On 5 March 1975, he was separated from the service after completing 3 years, 6 months, and 13 days of creditable active service this term of service with 44 lost days due to AWOL.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

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 (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 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.  The applicant's prior service achievements and conduct are noteworthy.  However, prior good military service conduct alone is not a basis for upgrading a discharge, and upon review, the applicant's good prior service conduct is not sufficient to mitigate his indiscipline in the Army during his last enlistment.  

2.  The applicant's records show that he received one summary court-martial, three Article 15s, and had five instances of AWOL during his last enlistment.  The applicant had completed 3 years, 6 months, and 13 days of his 6-year reenlistment with a total of 44 lost days due to AWOL.  Based on these facts, the applicant’s service during his last enlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  

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)                                         AR20080008725



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ABCMR Record of Proceedings (cont)                                         AR20080008725



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