IN THE CASE OF:	  

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080010669 


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 (UD) be upgraded to an Honorable Discharge (HD).

2.  The applicant states, in effect, that during his separation processing, his legal counsel advised him to sign for an immediate release; however, he was never informed nor was he aware his discharge was under undesirable conditions.  He states that he served his country honorably in the Republic of Vietnam (RVN), and was awarded the Bronze Star Medal (BSM) with "V" (Valor) Device.  He also states that the only crime he ever committed was being absent without leave (AWOL), for which he paid by being reduced in rank from sergeant (SGT) to private/E-1 (PV1), and having his pay reduced so low he could not support his family and had no choice but to accept an UD.  He states he offered his life for his country and the United States Army, and that he feels 38 years is long enough to live with pain and to pay for the mistakes that he made.  He now requests that his UD be upgraded to an HD.

3.  The applicant provides Headquarters 1st Cavalry Division General Orders Number 2608, dated 24 April 1968, and an undated Department of Army Review Boards Agency Letter in support of his application.

C`ONSIDERATION 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 he initially enlisted into the Regular Army (RA) and entered active duty on 3 March 1964.  He served for a period of 1 year, 
1 month, and 4 days until being honorably released from active duty for the purpose of immediate reenlistment on 5 April 1965.  On 6 April 1965, he reenlisted in the RA for 4 years.  He held and served in military occupational specialty (MOS) 111.00 (Light Weapons Infantryman), and the highest grade he attained while serving on active duty was SGT.  

3.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions, and two Special Court-Martial (SPCM) convictions.  

4.  On 12 January 1965, the applicant accepted NJP for being absent without leave (AWOL) from 2 through 3 January 1965.  His punishment for this offense was a forfeiture of three days pay for a period of one month ($10.00) and 7 days of restriction and extra duty.

5.  On 5 August 1966, the applicant accepted NJP for his failure to go to his appointed place of duty at the time prescribed.  His punishment for this offense was a forfeiture of $29.00 and 2 hours of extra duty for 14 days.

6.  On 11 August 1966, the applicant accepted NJP for failure to go to his appointed place of duty at the time prescribed.  His punishment for this offense was a forfeiture of $20.00.


7.  On 23 May 1969, a SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 21 January through on or about 
14 May 1969.  The resultant sentence was confinement at hard labor for 
6 months, a forfeiture of $70.00 per month for six months, and reduction to private/E-1 (PV1).  

8.  On 6 February 1970, a SPCM found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from on or about 5 September through 
27 December 1969.  The resultant sentence was performance of hard labor without confinement for 25 days (suspended for 25 days) and 30 days of restriction to the limits of Fort Gordon, Georgia.  

9.  The applicant's Official Military Personnel File (OMPF) contains orders that awarded the applicant the Air Medal for meritorious achievement during the period June 1967 through January 1968, and the Army Commendation Medal (ARCOM), for meritorious service during the period June 1967 through June 1968.  These award orders were revoked in orders issued on 25 May 1970.

10.  On 10 September 1970, a Charge Sheet (DD Form 458) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 14 February 1970, through on or about 1 September 1970.

11.  On 10 November 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of an UD and of the rights available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  In his request for discharge, the applicant acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an UD.  He submitted a statement in his own behalf in which he requested that his service records be closely examined and that his previous character of services and oversea duty be taken into consideration when determining the type of discharge he would receive. 




12.  On 16 November 1970, the unit commander recommended approval of the applicant's request for discharge under the provisions of Chapter 10, and requested the applicant receive an UD.  The unit commander stated that the applicant was allegedly AWOL from on or about 14 February 1970 until on or about 1 September 1970, and had two previous SPCM convictions for being AWOL.

13.  On 27 November 1970, the separation authority approved the applicant’s request for discharge, and directed that he receive an UD.  On 8 December 1970, the applicant was discharged accordingly.  The DD Form 214, he was issued at that time confirms he was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It further shows that at the time, he had completed a total of 4 years, 1 month, and 17 days of creditable active military service, and he had accrued 615 days of lost time due to being AWOL.

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

15.  The applicant provides Headquarters, 1st Cavalry Division, General Orders Number 2608, dated 24 April 1968, which awarded him the BSM with "V" Device, for heroism on 7 December 1967, while serving as a squad leader with Company C, 2nd Battalion (Airborne), 8th Cavalry Regiment during search and destroy missions near Bong Son, Republic of Vietnam (RVN).  

16.  The applicant also provides a letter from the Department of Army Review Board Agency, undated, which states that the Army Discharge Review Board (ADRB) is not the applicable board to review his case based on the statutory period for appeals which prohibits the ADRB from processing applications received after fifteen years from the date of discharge or release from active duty.

17.  Army Regulation 635-200 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 trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's 
separation the regulation provided for the issuance of an UD.  The separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD be upgraded because the only crime he ever committed was being AWOL and that he already paid for this mistake by being reduced in rank was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel and confirming that he fully understood the ramifications of receiving an UD, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record further confirms that the applicant's acts of misconduct resulted in revocations of his awards of the AM and ARCOM, and that his UD was based on his extensive AWOL history that totaled more than 600 days.  As a result, his honorable service, which included combat service in the RVN, and the BSM with “V” Device was not sufficiently mitigating to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this time.

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 this requirement.  

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)                                         AR20080010669



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010669



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1