IN THE CASE OF:	  

	BOARD DATE:	  9 October 2008

	DOCKET NUMBER:  AR20080011433 


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.   
2.  The applicant states that when he returned from the Republic of Vietnam his parents had financial problems.  He went AWOL (absent without leave).  While AWOL, he got married and his wife had a baby.  He was young and scared; therefore, when he was facing a court-martial, he took the first offer made to him and accepted an undesirable discharge. 

3.  The applicant provides, in support of his application, a statement from his former wife, who relates that the applicant had noticeable problems stemming from his service in the Republic of Vietnam.  He had nightmares for years.  She contends that he proved himself as an American fighting a war that most people had no idea about and probably still do not know about is worth getting an honorable discharge.

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 27 December 1967, the applicant enlisted in the Regular Army for 3 years. He completed his initial training and was awarded military occupational specialty (MOS) 63B (Wheel Vehicle Mechanic).

3.  On 27 May 1968, the applicant was assigned for duty as a wheeled vehicle mechanic with the 93rd Engineer Company, in the Federal Republic of Germany.

4.  On 13 September 1968, the applicant was honorably discharged for the purpose of immediate reenlistment.  He had attained the rank of specialist four (SP4), pay grade E-4, and had completed 8 months and 17 days of creditable active duty service.

5.  On 14 September 1968, the applicant reenlisted for 3 years.

6.  On 29 November 1968, the applicant was assigned for duty as a wheel vehicle mechanic with the 8th Engineer Battalion, in the Republic of Vietnam. 

7.  On 19 November 1969, the applicant returned to the United States for duty at Fort Hood, Texas.

8.  On 27 January 1970, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being AWOL from on or about 14 to 25 January 1970.  The punishment included a forfeiture of $35.00 pay per month for 1 month, 14 days restriction, and 7 days extra duty (suspended).

9.  On 10 February 1970, the applicant accepted NJP for being AWOL from on or about 2 to 9 February 1970.  The punishment included reduction to pay grade
E-3, forfeiture of $40.00 pay per month for 1 month, and 8 days extra duty.

10.  Records show that the applicant was AWOL from 2 March to 16 April 1970; 18 to 21 April 1970; 26 April to 27 December 1970; and from 21 January 1971 to 27 September 1972. 

11.  On 5 October 1972, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from 
21 January 1971 to 27 September 1972.
12.  On 11 October 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were 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. 

13.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged 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.   

14.  On 9 November 1972, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  

15.  The applicant was AWOL from 4 December 1972 to 21 January 1973.

16.  On 22 January 1973, the applicant was discharged accordingly.  He had completed a total of 2 years, 4 months, and 21 days of creditable active military service and had accrued 931 days of time lost due to AWOL.

17.  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.

18.  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.  However, at the time of the applicant’s separation, an undesirable discharge was considered appropriate.

19.  Army Regulation 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.

20.  Army Regulation 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.

21.  The Manual for Courts-Martial 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  Based on this 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 renders his service unsatisfactory.  Therefore, he is not entitled to a general or an honorable discharge.
 
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)                                         AR20080011433



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