IN THE CASE OF:	  

		BOARD DATE:	        09 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080009763 


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 under other than honorable conditions be upgraded to a general discharge under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, by checking off 20 reasons listed on a preprinted list of 27 reasons for discharge upgrade, that clemency is warranted because it is an injustice for him to continue to suffer the adverse consequences of a bad discharge, that he has been a good citizen since his discharge, and under current standards he would not receive the same type of discharge.  He further states his conduct, efficiency, behavior, and proficiency ratings were good.  He states he served in combat and received awards, decorations, and letters of recommendation.  He states his record of promotion shows he was a good Soldier and it was unfair to give him a bad discharge when he was so close to his expiration of term of service (ETS).  He further states his disciplinary record only reflects minor offenses.  He states his ability to serve was impaired by his youth and immaturity.  He further states that marital and family problems, personal problems, financial problems, and his use of alcohol and drugs impaired his ability to serve.

3.  The applicant provides a DD form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his 
DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with an effective date of 11 September 1973 in support of his 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 personnel record shows he enlisted, at the age of 17 with his parents consent, in the Regular Army on 20 March 1967 for a period of 
3 years.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant served in the Republic of Vietnam during the period from 
3 February 1968 to 26 January 1969.  The applicant was awarded the Bronze Star Medal for meritorious service in connection with military operations against a hostile force during the period from 1 April 1968 to 30 November 1968, and the Combat Infantryman Badge.  He was also awarded the Army Achievement Medal for meritorious achievement during the period from 1 March 1968 to 31 July 1968.

4.  On 2 January 1969, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to report for guard.

5.  On 14 August 1969 the applicant pled guilty and was found guilty by a special court-martial of being absent without leave (AWOL) during the periods from
30 March to 7 April 1969, from 7 April to 5 May 1969, from 12 May to 2 June 1969, and from 4 June 1969 to 7 June 1969.  His sentence consisted of confinement for 6 months, forfeiture of $82 pay per month for 6 months, and to be reduced to the grade of private/pay grade E-1.  The convening authority approved the sentence on 21 August 1969.

6.  On 11 December 1969, the applicant departed AWOL and was dropped from the rolls of the Army on 11 December 1969.

7.  On 2 August 1973, the applicant was apprehended by civilian authorities and returned to military control.

8.  The applicant's separation processing package was not available for the Board's review.

9.  On 11 September 1973, the applicant was discharged under the provisions of 
Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service and was issued an Undesirable Discharge Certificate.  He had completed 2 years, 7 months, and 4 days of active service that was characterized as under other than honorable conditions.  He had 188 days of time lost prior to his normal ETS and 1,231 days lost subsequent to his normal ETS.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

11.  Army Regulation 635-200, both currently in effect and in effect at the time of the applicant's discharge, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.  The 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 under other than honorable conditions should be upgraded to a general discharge under honorable conditions or an honorable discharge.

2.  The applicant contends that clemency is warranted in his case because he should not have to continue to suffer the adverse consequences of his discharge, he has been a good citizen since his discharge, and under current standards he would not receive the same type of discharge.  Good post-service conduct alone is not a basis for upgrading a discharge and the ABCMR does not upgrade discharges based solely on the passage of time.  Under current standards individuals who request a discharge in lieu of court-martial are normally discharged under other than honorable conditions.  

3.  The applicant contends his conduct, efficiency, behavior, and proficiency ratings were good; he had a good promotion record; and that he served in combat, and received awards, decorations, and letters of recommendation.  He further contends his record of indiscipline only included minor offenses.  The evidence shows the applicant did have a good record up until the time that he started going AWOL.  However, his numerous periods of AWOL, the length of his last period of AWOL, and the fact that he had to be apprehended in order to return him to military control outweighs his previous good record of performance. In addition, being AWOL for over 3 years and only returning because of being apprehended is not considered a minor offense.

4.  The applicant contends it was unfair to give him a bad discharge so close to his ETS.  The applicant was within 6 months of his ETS (as adjusted from previous periods of AWOL) when he started his last period of AWOL.  It was the applicant's choice to go AWOL instead of finishing his term of enlistment.  A Soldier can only be discharged under the provisions of Chapter 10 after he has    voluntarily requested discharge and acknowledged that he could receive an undesirable discharge and the consequence of such a discharge.  Therefore, the applicant's contentions are without merit.

5.  The applicant contends his ability to serve was impaired by his youth and immaturity.  It is noted that the applicant was 17 years of age when he enlisted in the Army.  However, many Soldiers were enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  In addition, he was 20 years of age at the time of his court-martial and had served for over 
2 years in the Army.  He had almost 3 years in service when he started his last period of AWOL and he was 24 years of age when he was finally apprehended.  
Therefore, neither the age nor the maturity of the applicant can be used as a reason to change a properly issued discharge.

6.  The applicant further contends that marital and family problems, personal problems, financial problems, and his use of alcohol and drugs impaired his ability to serve.  However, there is no evidence of record to support these contentions.  Therefore, they cannot be used as mitigating factors in the determination of this case.

7.  Although the applicant's complete separation package was not available, in order for him to be discharged under the provisions of Chapter 10 of Army Regulation 635-200, charges would have had to have been preferred against him for an offense for which the authorized punishment includes a punitive discharge. The applicant, after consulting with counsel, then had to have voluntarily requested discharge, admitted his guilt, acknowledged that he could receive an undesirable discharge, and acknowledge the consequences thereof.

8.  Although the applicant's separation package was not available, it is presumed that the Army's administrative processing of the applicant for discharge was correct. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

9.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

10.  A review of the applicant's record of service shows the applicant did not meet the established standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  The applicant's awards of the Bronze Star Medal and the Combat Infantryman Badge were noted.  However, his misconduct began almost a year after the period for which he was recognized by these awards.  

11.  In view of the above, there is insufficient basis to change the characterization of the applicant's discharge to honorable or under honorable conditions.

12.  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 that requirement.


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)                                         AR20080009763



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ABCMR Record of Proceedings (cont)                                         AR20080009763



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