IN THE CASE OF:	  

		BOARD DATE:	       25 September 2008

		DOCKET NUMBER:  AR20080011997 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he had nightmares and difficulty sleeping at night due to his service in Vietnam.  The applicant states that he could not take another tour in Vietnam so he went on leave and never reported to his next duty station. The applicant continues that he was receiving medication and seeing a doctor at the department of Veterans Affairs (VA) in Charleston, South Carolina.  He now lives in Indiana and the VA refuses to treat him because of his last DD Form 214 that shows an undesirable discharge.

3.  The applicant provides 2 DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) with ending periods 20 May 1970 and 21 June 1973; and a memorandum from the VA, Veterans Service Office, Bluffton, Indiana, dated 3 July 2008.  

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 enlisted in the Regular Army on 20 May 1968 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 11C (Indirect Fire Crewman) and was later awarded MOS 64B (Heavy Truck Driver).  

3.  The applicant arrived in Vietnam and was assigned to the 3rd Battalion, 8th Infantry, 4th Infantry Division on or about 16 October 1968.  He departed Vietnam on or about 15 October 1971.  

4.  The applicant was honorably discharged on 20 May 1970 and immediately reenlisted on 21 May 1970 after completed 2 years and 1 day of creditable active service with no days lost time.  

5.  On 26 July 1971, the applicant accepted NJP under Article 15, UCMJ for being drunk and disorderly and two specifications of not being at his appointed place of duty.

6.  Evidence of record shows that the applicant was absent without leave (AWOL) for the period 30 November 1971 through 24 April 1973.

7.  The applicant's court-martial charge sheet is not available.

8.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 21 June 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of in lieu of trial by court-martial with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed 1 year, 8 months, and 6 days of creditable active service this term of service with 512 days of lost time due to being AWOL.



9.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests that his undesirable discharge be upgraded to an honorable discharge.  However, his records show that he was received one Article 15 and had a lengthy AWOL during his second term of military service.  He had completed 1 years, 8 months, and 6 days of creditable active service with a total of 512 days of lost time due to AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel that are required for issuance of a general or an honorable discharge.

2.  Discharges under the provisions of chapter 10 of AR 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

3.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  __xx____  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.




      _______ xxxx_______   ___
               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)                                         AR20080011997





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ABCMR Record of Proceedings (cont)                                         AR20080011997



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