IN THE CASE OF:	

		BOARD DATE:	  23 September 2008

		DOCKET NUMBER:  AR20080012870 


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, characterized as under conditions other than honorable be upgraded to honorable.

2.  The applicant states, in effect, that he was wounded on 2 occasions as an infantry Soldier in the Republic of Vietnam (RVN).  When he returned to the States, he requested to go back to combat and was denied.  Combat was all he knew and wanted to do.  The desire for combat and the negative effects of the stateside civilian community led him to go absent without leave (AWOL).  His actions were foolish and he allowed his dissatisfaction with stateside duty, with no chance of combat, to influence his behavior.   

3.  The applicant provides a self-authored statement, dated 14 December 2007.

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 10 October 1967, 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) 11B (Light Weapons Infantryman).  He attained the grade of specialist four (SP4)/E-4.  

3.  The applicant served in the RVN from 11 May - 4 October 1968.  He was wounded in action on 5 August 1968 and 19 September 1968.

4.  On 8 October 1969, a special court-martial convicted the applicant of being AWOL from 1 – 29 August 1969.  The resultant sentence included 30 days of restriction and a reduction to the grade of private (PV2)/E-2. 
 
5.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he had 4 other separate periods of AWOL for a total of 98 days.  His DD Form 214 also shows that he was discharged under the provisions of chapter 10, Army Regulation
635-200 (Enlisted Personnel Separations), by reason of for the good of the service – in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He completed 2 years, 1 month, and 13 days of active duty service. 

6.  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 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.  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 undesirable discharge.

7.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.

8.  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.

9.  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 specific facts and circumstances leading to the applicant's discharge are not contained in the official record.     

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The charges against him are unknown; however, he would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  In the absence of evidence to the contrary, regularity is presumed in the discharge process.  

3.  In light of the applicant's combat record, his contentions were carefully and thoroughly considered.  However, in view of his lengthy history of misconduct, which included a special court-martial, and 5 separate periods of AWOL, his contentions are not sufficiently mitigating to warrant a change in his type of discharge.  Given the foregoing, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel warranting an honorable discharge.

4.  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

__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)                                         AR20080012870



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ABCMR Record of Proceedings (cont)                                         AR20080012870



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