IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080009874 


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, an upgrade of his undesirable discharge to a general, under honorable conditions or honorable discharge.

2.  The applicant states that he joined the Army at the age of 17 and volunteered to go to Vietnam, where he earned the Combat Infantryman Badge and three awards of the Purple Heart.  He also adds that he was married while on convalescent leave and was subsequently transferred to Fort Knox, Kentucky.  However, his records were lost and he was only paid $10.00 a month for health and comfort.  He solicited assistance from his chain of command and other sources on his installation, but his pay problem was not resolved.  He subsequently departed his unit in an absent without leave (AWOL) status, where he took care of the unresolved issues at home and returned to his unit.  After a Special Court-Martial, he decided he had to leave again and was AWOL for approximately 200 days.  Upon his return to Fort Knox, he was offered a discharge in lieu of court-martial.  He concludes that he is now older and wiser and recognizes that he made a mistake and wishes to correct this mistake.      

3.  The applicant provides a self-authored letter, dated 1 May 2008, and three character reference letters, 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 record shows that he was born on 8 January 1949 and enlisted in the Regular Army at the age of 17 for a period of 3 years on 22 April 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantry).  He was honorably discharged on 22 April 1968 for the purpose of immediate reenlistment and reenlisted for a period of 6 years on 23 April 1968.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he served in the Republic of Vietnam from 16 March 1967 to 28 November 1967.  His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Combat Infantryman Badge, the Purple Heart (1st Oak Leaf Cluster), one Overseas Service Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  

4.  The applicant’s records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:
	
	a.  on 7 February 1968, for being AWOL during the period from on or about 16 January 1968 through on or about 5 February 1968.  His punishment consisted of forfeiture of $20.00 pay for one month, 14 days of restriction, and reduction to private first class (PFC)/E-3, and

	b.  on 4 April 1968, for failing to go at the time prescribed to his appointed place of duty, on or about 3 April 1968.  His punishment consisted of 12 days of restriction and 12 days of extra duty.

5.  On 21 October 1968, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 19 August 1968 through on or about 2 October 1968.  The Court-Martial sentenced him to forfeiture of $132.00 pay per month for two months and 60 days of restriction.  The sentence was adjudged on 21 October 1968 and was approved on
28 October 1968.  
6.  On 28 July 1969, the applicant pled guilty at a Special Court-Martial to one specification of being AWOL during the period from on or about 13 November 1968 through on or about 19 June 1969.  The Court-Martial sentenced him to confinement at hard labor for 6 months and reduction to private (PVT)/E-1.  The sentence was adjudged on 28 July 1969 and was approved on 31 July 1969.

7.  On 13 August 1969, the unexecuted portion of the applicant’s sentence to confinement at hard labor for 6 months was remitted, effective 14 August 1969.

8.  Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows multiple entries of AWOL and confinement during the following periods:

	a.  from 19 August 1968 through 1 October 1968, for 44 days of AWOL;

	b.  from 2 October 1968 through 20 October 1968, for 19 days of confinement; 

	c.  from 13 November 1968 through 18 June 1969, for 218 days of AWOL; and 

	d.  from 19 June 1969 through 14 August 1969, for 57 days of confinement.  

9.  On 1 August 1969, the applicant’s immediate commander notified the applicant of his intent to initiate elimination action against him, in accordance with chapter 13 of Army Regulation (AR) 635-212 (Personnel separations) for unfitness.  

10.  On 5 August 1969, the applicant consulted with counsel and acknowledged notification of his pending separation action.  He waived consideration of his case by a board of officers, waived personal appearance before a board of officers, and elected not to submit a statement.  He further indicated he understood that if his separation was a general discharge under honorable conditions, he could encounter substantial prejudice in civilian life.

11.  On 5 August 1969, the applicant’s immediate commander initiated action to eliminate the applicant from the service, in accordance with AR 635-212, for unfitness.  The immediate commander cited the applicant’s AWOL and confinement and remarked that further rehabilitation of this applicant was futile.  


12.  On 5 August 1969, the applicant’s senior commander recommended approval of the applicant’s elimination from the service for unfitness and further recommended an Undesirable Discharge Certificate.  

13.  On 11 August 1969, the separation authority waived the requirement for a rehabilitative transfer and approved the applicant's discharge for unfitness under the provisions of AR 635-212 and directed that he be furnished an Undesirable Discharge Certificate.  Accordingly, the applicant was discharged on 18 August 1969.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he was discharged with a character of service of under other than honorable conditions.  This form further shows he completed 2 years, 4 months, and 23 days of creditable active military service and had 338 days of lost time due to AWOL and confinement.  

14.  In his self-authored statement, dated 1 May 2008, the applicant gives an overview of his background, childhood, and family; and how he joined the Army at an early age.  He goes on to state that during his recuperation from injuries he sustained in Vietnam, he met and married his wife; however, his records were lost at the time, and he encountered serious financial hardship.  He addressed the issue with his chain of command as well as the Chaplain and the Red Cross; however, the issue was not resolved, so he ended up departing in an AWOL status.  Upon his return, he was penalized with forfeiture of pay that he did not have in the first place, so he went AWOL again.  Upon his return, he was court-martialed again and his situation was no longer manageable, so he requested a discharge.  After his discharge, he requested an upgrade, but it was denied.  He concludes that he remains a patriot today and asks the Board to consider an upgrade of his discharge.

15.  The applicant provided three character reference letters as follows:

	a.  in her letter, dated 1 May 2008, the applicant’s spouse comments on the difficulties they encountered upon his return from Vietnam and he had to build himself and overcome a lot to be what he is today: a family man, dedicated to his family and job;

	b.  in an undated letter, the applicant’s brother-in-law states that he has known the applicant for many years and that he is a talented, self-made man  despite the difficulties he encountered in Vietnam; and

	c.  in an undated letter, the applicant’s sister comments on the applicant’s tough upbringing as well as his bravery and endurance.  He is a solid citizen who overcame a drinking problem and raised a great family and a successful business.  
16.  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.

17.  AR 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

18.  AR 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.  .

19.  AR 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 evidence of record shows that the applicant was 17 years of age at the time of his enlistment and nearly 19 years of age at the time of his first offense.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of misconduct was the result of his age

2.  The applicant’s service in the Republic of Vietnam, awards of the Purple Heart, and his current solid standing in his community are noted.  Furthermore, the applicant’s entire record of service was considered.  However, there is no evidence in the available records and the applicant did not provide any evidence 
showing his acts of indiscipline were the result of financial problems.  The applicant's records reveal an extensive history of AWOL as well as a disciplinary history which includes his acceptance of an Article 15 and two instances of special courts-martial.

3.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.  The applicant's discharge was in accordance with applicable regulation, 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.

4.  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 a general discharge or an honorable discharge.

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)                                         AR20080009874



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ABCMR Record of Proceedings (cont)                                         AR20080009874



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