IN THE CASE OF:	  

	BOARD DATE:	  28 AUGUST 2008

	DOCKET NUMBER:  AR20080010163


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 was not a very responsible young man in 1971 when he was discharged from the Army.  He looks back on those years when he was living in California and the public’s opinion of the Vietnam conflict was not very favorable.  Unfortunately, he let it all influence him into making a bad decision.  He asks that the Board give an old man a new beginning by helping him to correct a very bad decision he made back in 1971.  He is not seeking any kind of veteran’s benefits.  He only asks for the Board to show a little mercy.  The only error or injustice is the realization today that he was not a very wise young man.  He only wants to correct one mistake in his life.   

3.  The applicant provides copies of his DD Form 214, resume, and work history.

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 30 March 1970, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  On 10 March 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from on or about 10 February to 3 March 1971.  The punishment included reduction to grade E-1 and a forfeiture of $65.00 pay per month for 2 months.

4.  On 26 March 1971, the applicant was convicted by a summary court-martial of AWOL (5 days).  His sentence consisted of a forfeiture of $30.00 pay per month for 1 month and reduction to pay grade E-2 [this reduction is inconsistent with the facts of the previous NJP].

5.  Available records show that the applicant was also AWOL from 13 to 28 May 1971; and from 21 to 26 April 1971.  There is no available evidence of record showing what, if any, punishment was given for this misconduct. 

6.  A Report of Investigation shows that the applicant, while AWOL, was involved in an automobile accident.  He received multiple facial lacerations, swollen knee, and a minor fracture of the right patella.  His injuries were found to be not in the line of duty due to his being AWOL at the time.

7.  The discharge packet is missing from his military records.  However, his Armed Forces of the United States Report of Transfer or Discharge (DD Form 214) shows that he was administratively discharged on 16 July 1971, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 1 year and 2 months of creditable active duty and had 47 days of lost time due to AWOL.

8.  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.


9.  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.

10.  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.

11.  The applicant has provided a 2-page self-authored document showing that he has been continually employed from 1971 to his last [maybe current] job in 2005, in the construction trades.  It shows that he has completed additional training and passed technical certifications in plumbing, electrical, carpentry, heating and air conditioning, gas piping, and sheet metal fabrication.  

DISCUSSION AND CONCLUSIONS:

1.  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.

2.  The applicant’s report of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

3.  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.

4.  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

__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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080010163



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