IN THE CASE OF:	  

		BOARD DATE:	  3 February 2009

		DOCKET NUMBER:  AR20080015870 


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 an honorable discharge (HD).

2.  The applicant states, in effect, that after he requested a hardship discharge he was instead given an UD after completing four years of honorable service and a tour in Vietnam.  He states he worked in the office where discharges were processed and indicates that he was essentially discharged because of a bribe to pay money for a discharge that was never paid.

3.  The applicant provides a self-authored statement in support of his request.

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 initially enlisted and entered active duty on 23 July 1965.  He was trained in and awarded military occupational specialty (MOS) 76Y (General Supply Specialist), and the highest rank he attained while serving on active duty was specialist four/E-4 (SP4).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in Item 31 (Foreign Service) that he served in the Republic of Vietnam (RVN) from 23 November 1966 to 11 November 1967.  Item 41 (Awards and Decorations) shows that the applicant earned the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device 1960, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  

4.  The applicant was honorably discharged on 17 January 1968 and immediately reenlisted on 18 January 1968.

5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.   

6.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that during the his active duty tenure, he accrued 412 days of time lost due to being absent without leave (AWOL) or in confinement during the following six separate periods:  5 April – 4 May 1968 (31 days); 5 May – 29 November 1968 (209 days); 9 December 1968 – 7 January 1969 (30 days); 8 January – 9 March 1969 (61 days); 11 March – 19 April 1969 (50 days); and 30 April – 20 June 1969
(51 days).

7.  An Insert Sheet to DA Form 20( DA Form 20B) shows on 30 April 1969, a Special Court-Martial (SPCM) found the applicant guilty of being AWOL on two separate occasions from on or about 5 April to 30 November 1968 and from on or about 9 December to 10 March 1969.  The resultant sentence was confinement at hard labor for 6 months and reduction to private/E-1 (PVT).

8.  On 2 June 1969, the applicant's unit commander advised the applicant that he was recommending him for discharge under the provisions of Army Regulation 635-212, by reason of unfitness.  The commander cited the applicant’s pattern of shirking by being AWOL as the basis for the separation action.

9.  On 3 June 1969, the applicant consulted with legal counsel and after being advised of the basis for the contemplated separation, its effects and the rights available to him, he waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and to counsel.  He further elected not to make a statement in his own behalf.

10.  On 16 June 1969, the separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, for unfitness, and directed the applicant receive an UD.  On 20 June 1969, the applicant was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time confirms he completed a total of 2 years, 10 months, and 6 days of creditable active military service, and that he accrued 412 days of time lost due to AWOL and confinement.

11.  There is no evidence of record to show that the applicant ever submitted a request to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.  

12.  Army Regulation 635-212, in effect at the time, set forth the basic authority, established the policy, and prescribed the procedures for separating members for unfitness.  The separation authority could issue an HD or general, under honorable conditions discharge (GD) if warranting by the member's overall record of service; however, an UD was normally considered appropriate for members separating under these provisions. 

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.  The applicant's contention that his UD should be should be upgraded to an HD because he completed 4 years of honorable service, a tour in the RVN, and he requested a hardship discharge was carefully considered.  However, there is insufficient evidence to support his claim.

2.  The evidence of record in this case confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's record documents no acts of valor, significant achievement or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his SPCM conviction and his accrual of 412 days of time lost due to AWOL and confinement during his last enlistment.  As a result, his overall record of service clearly did not support the separation authority issuing an HD or GD at the time, nor does it support an upgrade of his discharge at this late date.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit 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)                                         AR20080015870





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015870



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1