IN THE CASE OF:	  

	BOARD DATE:	  13 August 2008

	DOCKET NUMBER:  AR20080009734 


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 honorable.   

2.  The applicant states, in effect, that he thought he was getting a hardship discharge until he requested health care and received a copy of his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) on 
8 April 2008.  He further states that he is a Vietnam veteran with diabetes and heart problems who needs health care.  The applicant contends that he went home on leave to help his mother support her father and his five sisters.  He hired an attorney to obtain a hardship discharge from the Army.  He cannot locate the hardship discharge papers and the attorney has died.  

3.  The applicant provides copies of his DD Forms 214 effective 14 June 1972 and 11 June 1974; and letters of support from his pastor and a friend.

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.  On 12 March 1971, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  

3.  On 7 August 1971, the applicant was assigned for duty as a driver with the 
6th Battalion, 32nd Air Defense Artillery, in the Republic of Vietnam.

4.  On 18 October 1971, the applicant was assigned for duty as a wireman with the 71st Air Defense Artillery.

5.  On 28 November 1971, the applicant was assigned for duty as a wireman with the 42nd Air Defense Artillery.

6.  On 15 February 1972, the applicant was assigned as a machine gunner with the 71st Air Defense Artillery.  On 4 March 1972, the applicant was returned to the United States for duty at Fort Eustis, Virginia.

7.  On 14 June 1972, the applicant was discharged for the purpose of immediate reenlistment.  He had attained the rank of specialist four, pay grade E-4, and had completed 1 year, 3 months, and 3 days of creditable active duty.  His characterization of service was honorable.

8.  On 15 June 1972, the applicant reenlisted in the Regular Army in the rank of specialist four, pay grade E-4. 

9.  On 29 March 1973, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for 8 days.  The punishment included a forfeiture of $ 75.00 pay per month for 1 month, and 14 days extra duty.

10.  On 25 January 1974, the applicant accepted NJP for AWOL of about 
15 days.  The punishment included reduction to pay grade E-3, forfeiture of $100.00 pay per month for 1 month, and 14 days of extra duty.

11.  Item 44 (Time Lost) of the applicant’s Enlisted Qualification Record (DA Form 20) shows, in part, that he was AWOL from 1 February to 10 March 1974; and from 25 March to 16 April 1974.

12.  On 22 April 1974, a Charge Sheet (DA Form 458) was initiated but not completed.  It indicated that the applicant had been AWOL from on or about 
26 March 1974 but did not show a date of return to military control.

13. The discharge packet is missing from the applicant’s military records.  However, his DD Form 214, effective 11 June 1974, shows that he was administratively discharged on 11 June 1974, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He had completed 
1 year, 9 months and 1 day of creditable active duty during this period of active service and he had 86 days of lost time due to multiple periods of AWOL.  

14.  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.

15.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

16.  Under the Manual for Courts-Martial, the maximum punishment allowed for violation of Article 86, for AWOL of more than 3 days but not more than 30 days is confinement for 6 months and forfeiture of two-thirds pay per month for 6 months.  The UCMJ also provides, in pertinent part, that if an accused is found guilty of two or more offenses for none of which dishonorable or bad-conduct discharge is authorized, the fact that the authorized confinement without substitution for these offenses is 6 months or more will, in addition, authorize bad-conduct discharge and forfeiture of all pay and allowances.  The Manual for Courts-Martial also provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 
30 days.

17.  The letter from the applicant’s pastor states, in part, that he has known the applicant for over 35 years, who has been a friend, a coach of the Pee-Wee Football and girl’s softball [teams] and is well known in the community.  The pastor further states that the applicant is a good Christian man who has always been there when he needed him and is dependable.

18.  The letter from a friend states that the applicant has shown he is dependable, responsible, and has good moral values.  Even though he is disabled, he is still a great asset to this society.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record showing that the applicant applied for a hardship discharge or that he had justification for such a discharge.

2.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The letters describing the applicant’s good post-service conduct were considered.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X__  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.





__________X _    _______   ___
       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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080009734



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