IN THE CASE OF:	 

		BOARD DATE:	  6 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014756 


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 (UD) be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, he believes his discharge should be upgraded because he volunteered for Vietnam and he was a good Soldier.

3.  The applicant provides no additional documentation in support of his 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.  The applicant's record shows he enlisted in the Regular Army, in pay grade
E-1, on 17 October 1973, for 3 years.  He completed basic and advanced individual training was awarded military occupational specialty (MOS), 63B, Wheel Vehicle Mechanic.  He was advanced to pay grade E-2 on 1 February 1974.

3.  On 12 February 1974, the applicant was punished under Article 15, of the Uniform Code of Military Justice (UCMJ), for possessing illegal weapons, to wit:  a chain, a metal device, and a knife with a blade extending over three inches, on 1 February 1974.  His punishment included a forfeiture of $110.00 pay per month for two months and 30 days extra duty.  That portion of the sentence adjudging to extra duty for 30 days was suspended for 30 days, at which time unless sooner vacated would be remitted without further action.  He did not appeal the punishment.

4.  The applicant was promoted to pay grade E-3 on 6 September 1974.

5.  On 27 September 1974, the applicant was punished under Article 15, of the UCMJ, for absenting himself from his unit from 16 September to 27 September 1974.  His punishment included a forfeiture of $125.00 pay per month for two months and reduction to pay grade E-1.  The punishment adjudging to reduction to pay grade E-1 was suspended for 90 days, at which time unless sooner vacated would be remitted without further action.  He did not appeal the punishment.  

6.  The applicant was reported absent without leave (AWOL) and dropped from the rolls of his unit on 10 December 1974.

7.  On 16 December 1974, the applicant’s unit commander initiated action to separate him from the service under the provisions of Army Regulation 635-200, Chapter 13.  The commander stated that the applicant's job performance had been marginal, he had been repeatedly AWOL, and he had been late returning from weekend passed on numerous occasions.  The unit commander also stated the applicant's continued disregard for his duty responsibilities and his previous record of same, coupled with being dropped from the roll and pending civil court conviction, caused him to recommend the applicant be eliminated from the service.

8.  The applicant was returned to military control on 23 December 1974.  He was again reported AWOL on 2 January 1975 and returned to military control on 6 January 1975.



9.  On 6 January 1975, after consulting with counsel, the applicant acknowledged his unit commander’s notification and voluntarily consented to the discharge.  He waived his right to counsel and to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge, under honorable conditions and the effects of such a discharge.  He also elected not to submit a statement in his own behalf.

10.  The applicant again departed AWOL on 14 February 1975 and returned to military control on 18 February 1975.

11.  On 5 March 1975, the applicant was punished under Article 15, of the UCMJ, for being AWOL from 14 February to 19 February 1975.  His punishment included a forfeiture of $80.00 pay per month for one month (suspended for 60 days) and seven days extra duty.  He did not appeal the punishment.  

12.  The applicant was promoted to pay grade E-4 on 2 August 1975.

13.  On 3 October 1975, the applicant was punished under Article 15, of the UCMJ, for being AWOL and wrongfully appropriating a 2 1/2 ton truck, property of the US Army, on 26 September 1975.  His punishment included a reduction to pay grade E-3.  He did not appeal the punishment.

14.  On 13 October 1975, the applicant was punished under Article 15, of the UCMJ, for being absent from his appointed place of duty from 30 September to 1 October 1975.  His punishment included a forfeiture of $97.00 pay per month from one month and 14 days extra duty.  He elected to appeal the punishment and submit a statement for consideration.  

15.  In an undated statement, the applicant stated that he was absent because two days earlier he had been charged with misappropriation of a government vehicle and was given 72 hours to see a Judge Advocate General (JAG) officer.  He also stated, in effect, that he was unable to see the JAG officer on 29 September 1975 and went back to see him the following morning on 30 September 1975.  He stayed the entire day trying to see him and left for home at 1630 hours.  The guy he stayed with was supposed to set the alarm clock, but he did not, and left him in the room to sleep.  At 0745 hours on the morning of 1 October 1975, Corporal ____ and Specialist _____ arrived at his place to wake him up.  He was at the Company by 0820 hours and that is when he was read his rights under the UCMJ.  He was fined 7 days pay which was about $100.00.  He further stated, in effect, that his mother was in the hospital and had been laid off work, and his brother and himself had to pay her hospital and her other bills.  His brother was in debt and he [the applicant] just could not afford to have $100.00 taken out of 


his pay.  He was transferred to the 4th Battalion, 63rd Armor, in order to better 
himself as a Soldier.  His mother was in the hospital because of her nerves and he just could not afford to affect the life of his mother because he owed her more than love, he owed her his life.  He hoped that his personal point of view would be understood and used in judgment of their decision.

16.  The applicant's appeal was granted and $60.00 pay per month for one month was suspended for 60 days.

17.  On 24 November 1975, a bar to reenlistment was initiated against the applicant based on his unsatisfactory conduct and efficiency.  The commander stated that the applicant was awaiting a Chapter 13 discharge.  The applicant had been counseled, but to no avail, and had stated that he just wanted out of the Army.  In a statement submitted in his own behalf, the applicant stated that he felt he should not be barred from reenlistment because of the financial hardship that this type of action would cause him and his family.  He also stated that he did not have any type of employment lined up for himself should he get out of the Army and without the option of reenlisting, he really did not know what he would do.  The bar to reenlistment was approved on 22 December 1975.

18.  On 3 December 1975, the applicant was punished under Article 15, of the UCMJ, for failing to go at the time prescribed to his appointed place of duty on
17 and 18 November 1975; willfully disobeying a lawful order on 18 November 1975; and absenting himself from his unit on 18 and 19 November 1975.  His punishment included a reduction to pay grade E-2, a forfeiture of $50.00 pay per month from one month, and 14 days extra duty and restriction.  The restriction for 14 days was suspended for 90 days.  He did not appeal the punishment.  

19.  The applicant was reduced to pay grade E-2 on 3 December 1975 and to pay grade E-1 on 29 March 1976. 

20.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged, in pay grade E-1, on 15 April 1976.  He was credited with 2 years, 4 months, and 22 days total active service and 37 days lost time due to AWOL. 

21.  The applicant's record does not show he served in the Republic of Vietnam during his period of service.

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

23.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, applied to separation for unfitness and unsuitability.  Paragraph
13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, an UD was issued by the separation authority.

24.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to general, under honorable conditions.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks. 

2.  The applicant's contentions have been noted; however, there is no evidence the applicant served in Vietnam during his period of service.  The evidence also shows the applicant was punished under Article 15 several times for multiple offenses.  His punishments also resulted in his subsequent reduction to the lowest enlisted grade.  He also was barred from reenlistment due to his unsatisfactory conduct and efficiency.  The applicant's commander stated that the applicant had been counseled, but to no avail, and had stated that he just wanted out of the Army.  

3.  The applicant's unit commander also stated that the applicant's job performance had been marginal, he had been repeatedly AWOL, and he had been late returning from weekend passed on numerous occasions.  In the unit commander's recommendation for elimination of the applicant he stated that the applicant's continued disregard for his duty responsibilities and his previous record of the same, coupled with being dropped from the roll of the Army and pending civil court conviction, caused him to recommend the applicant be eliminated from the service.

4.  All the documents pertaining to the applicant's discharge are unavailable for review.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by him.  This document identifies the reason and 
authority for the applicant's discharge and the characterization of his service.
5.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

6.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

7.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

8.  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)                                         AR20080014756



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ABCMR Record of Proceedings (cont)                                         AR20080014756


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