IN THE CASE OF:	

		BOARD DATE:	  30 December 2008

		DOCKET NUMBER:  AR20080015869 


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 be upgraded to honorable.

2.  The applicant states, in effect, that he served in Vietnam from 1969 to 1970 and that he received the Bronze Star Medal.  He indicates that he tried to stay in Vietnam so he could get out early but his request was denied.  He goes on to state that he was transferred to Germany without any leave, that his sister was killed in a car accident, and that his mother was left alone to raise his sister's baby.  He claims that he applied for a hardship discharge but he never received a response and that he stayed with his mother and the baby until his mother was able to support them and then he went back voluntarily to get his discharge. 

3.  The applicant provides no additional evidence 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 enlisted in the Regular Army on 30 January 1970 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 12A (pioneer).  He arrived in Vietnam on 5 July 1970.   

3.  On 24 December 1970, while in Vietnam, nonjudicial punishment was imposed against the applicant for altering a sick slip with intent to deceive.  His punishment consisted of a forfeiture of pay.

4.  On 26 March 1971, while in Vietnam, in accordance with his plea, the applicant was convicted by a special court-martial of possessing heroin.  He was sentenced to be confined at hard labor for 3 months, to be reduced to E-1, to forfeit $90 pay per month for 6 months, and to be discharged with a bad conduct discharge.  On 20 April 1971, the convening authority approved the sentence but suspended the confinement at hard labor in excess of 1 month and the bad conduct discharge until 15 October 1971.  

5.  The applicant departed Vietnam on 4 July 1971 and was transferred to Germany on 13 August 1971.  Records show he departed on emergency leave on 25 November 1971 due to the death of his sister.

6.  The applicant went absent without leave (AWOL) on 25 December 1971 and returned to military control on 12 May 1972.  He went AWOL again on 5 June 1972 and returned to military control on 14 January 1974.  On 23 January 1974, charges were preferred against the applicant for the AWOL periods.  

7.  On 28 January 1974, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by 
the Veterans Administration (now known as the Department of Veterans Affairs) and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter 



substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that he wanted to be discharged and that if he were sent back to active duty he would be forced to go AWOL again.  He stated that he could not adjust to the military, that he turned to drugs in the Army, that he did not like his military occupational specialty, that a lot of people lied to him in the Army, and that if he were discharged he would be a better person.      

8.  On 31 January 1974, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

9.  Accordingly, the applicant was discharged with an undesirable discharge on 
13 February 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years and 17 days of creditable active service with 676 days of lost time due to AWOL and confinement.  

10.  There is no evidence of record which shows the applicant applied for a hardship discharge prior to his discharge.

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.

12.  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.  At the time, an undesirable discharge was normally considered appropriate. 

13.  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.  




14.  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.  Family problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures.  There is also no evidence of record which shows the applicant requested a hardship discharge prior to his discharge.  

2.  The applicant’s record of service included one nonjudicial punishment, one special court-martial conviction, and 676 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  
   
4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20080015869





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ABCMR Record of Proceedings (cont)                                         AR20080015869



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