IN THE CASE OF:	  

		BOARD DATE:	        09 OCTOBER 2008

		DOCKET NUMBER:  AR20080013004 


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 an upgrade of his discharge.

2.  The applicant states that prior to his Vietnam tour, he did not have any infractions; however, after his return from Vietnam, he continually left his unit in an absent without leave (AWOL) status.  He also adds that the death of his friend and the loss of his hearing may have contributed to his AWOL.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, Special Orders Number 198, dated 17 July 1969.

	b.  Honorable Discharge Certificate, dated 15 September 1965.

	c.  Personal History of Accused, dated 6 February 1969.

	d.  Air Force Form 422 (Physical Profile Serial Report), dated 13 August 1968.

	e.  U.S. Air Force Letter of Appreciation, dated 16 August 1968.

	f.  U.S. Navy Letter of Commendation, undated.


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's records show he enlisted in the Regular Army for a period of 4 years on 2 January 1964.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71H (Personnel Specialist).  He was honorably discharged on 15 September 1965 for the purpose of immediate reenlistment and he reenlisted for a period of 6 years on 16 September 1965.  The record show the highest rank/grade he attained during his military service was specialist four (SP5)/E-5.

3.  The applicant's records also show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, the Meritorious Unit Commendation, two Overseas Service Bars, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).  There is no indication of any significant acts of valor during his military service.

4.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, Special Orders Number 198, issued by Headquarters, U.S. Army Infantry Center, Fort Benning, Georgia, on 17 July 1969, directed the applicant's discharge under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations) for unfitness-frequent incidents of discreditable nature, with a character of service of other than honorable conditions.  

5.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge is not available for review with this case.

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.
7.  Army Regulation 635-208 (Personnel Separations) (later superseded by Army Regulation 635-200), in effect at the time, set forth the policy for administrative separation for unfitness.  Paragraph 3 of the regulation provided, in pertinent part, individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

8.  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.

9.  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 contends that his discharge should be upgraded.

2.  There is no evidence that the applicant's infractions were as a result of a death of a friend or the loss of his hearing. 

3.  The applicant’s record is void of the facts and circumstances surrounding his discharge.  However, his discharge orders show he was discharged in accordance with the provisions of Army Regulation 635-200, for unfitness and he was furnished an under other than honorable conditions discharge.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  



4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant did not submit 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)                                         AR20080013004



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ABCMR Record of Proceedings (cont)                                         AR20080013004



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