IN THE CASE OF:	  

		BOARD DATE:	        11 December 2008

		DOCKET NUMBER:  AR20080015945 


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 discharge be upgraded. 

2.  The applicant states, in effect, that he was experiencing family difficulties while he was serving in the Republic of Vietnam.

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), a DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), and a self-authored letter 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 that he was inducted into the Army of the United States and entered active duty on 20 November 1969.  His record shows he was discharged with an honorable character of service on 6 August 1970 to immediately enlist in the Regular Army on 7 August 1970.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  Evidence show the applicant was AWOL during the following periods:  
4 September 1970 through 9 February 1972 and 4 April 1972 through 14 April 1972 for a total of 535 days of lost time.

5.  On 7 March 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a bad conduct or dishonorable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged that he understood by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

7.  The applicant's request for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) was approved by the appropriate authority on 14 April 1972.

8.  On 14 April 1972, the applicant was discharged accordingly with an Undesirable Discharge Certificate.  The DD Form 214 issued confirms he completed a total of 11 months and 4 days of creditable active military service with 535 days of lost time due to being AWOL and in confinement.


9.  On 31 January 1983, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States).  On 16 August 1985, the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge.

10.  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 of the applicant's separation, an undesirable discharge was appropriate.

11.  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.  

12.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's records show he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant's discharge accurately reflects his overall record of service.

3.  The applicant's records show that he had 535 days lost due to being AWOL and civil confinement.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.
5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

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)                                         AR20080013198



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ABCMR Record of Proceedings (cont)                                         AR20080015945



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