IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080012468 


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 a general discharge (GD), under honorable conditions.

2.  The applicant states, in effect, that the Vietnam War was unjust.  He also states that most civilians viewed Soldiers as women and baby killers.  He would like his record cleared before he dies.

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 3 April 1968, the applicant enlisted in the Regular Army for a period of 3 years.  He was trained in, awarded, and served in military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).  He attained the grade of specialist four/E-4.  The record shows his only overseas service as Germany.

3. On 2 December 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty at the prescribed time.  His punishment consisted of a forfeiture of $20.00.

4.  On 23 February 1971, court-martial charges were preferred against the applicant for 3 specifications of being absent without leave (AWOL) from 22 June to 19 July 1969, from 4 August to 2 November 1969, and from 10 December 1969 to 7 March 1970.

5.  On 23 February 1971, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

6.  The applicant submitted a statement in his own behalf indicating that while on leave en route to his assignment in the Republic of Vietnam (RVN), he stayed with his father who had just been released from prison.  His father had spent most of the applicant's childhood in and out of jail and when he was released the last time, his father appeared to be a changed man and wanted to stay out of trouble.  He also indicated that he fell in love and his wife needed an operation for bone cancer.  He was working on a cattle ranch and had a job if only he could get a discharge from the Army.

7.  On 24 March 1971, the separation authority approved the applicant's request for discharge and directed he be issued an Undesirable Discharge. 

8.  Accordingly, the applicant was discharged on 2 April 1971 under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions on his DD Form 214 (Report of Separation from Active Duty).  He was credited with 2 years, 5 months, and 5 days of total active service and he had 207 days of lost time due to AWOL.  

9.  Army Regulation 635-200 (Enlisted Personnel Separations), then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. An Undesirable Discharge was normally considered appropriate for this type of discharge.

10.  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.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant received NJP on one occasion, went AWOL on 3 occasions for a total of 207 days, and had special court-martial charges preferred against him for these periods of AWOL. 

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

3.  At the time the applicant voluntarily submitted his request for discharge in lieu of trial by court-martial, he provided a written statement indicating that while AWOL he spent time with his father, worked on a cattle ranch and helped his wife who had an operation for bone cancer.  He made no reference to an unjust war or disrespectful treatment of Soldiers by the civilian populace.


4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He did not provide any evidence in mitigation of his serious misconduct.  Therefore, there is no justification to change the characterization of his service. 

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

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)                                         AR20080012468





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ABCMR Record of Proceedings (cont)                                         AR20080012468



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