IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080016830 


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 that his undesirable discharge be upgraded to honorable. 

2.  The applicant states that in August 1971 a riot broke out in Long Binh, Saigon and he happened to be there at the wrong time.  He contends that he only had 13 days left in Vietnam, that he was 21 years old, that a brother was killed in Okinawa, and that another brother was critically wounded in Vietnam.  He indicates that he was tired, stressed, and scared that 13 days would not come fast enough for the military to offer him an honorable discharge so he was led to believe that all he had to do was sign a paper saying that he was resigning for the good of the military and he could go home.  He also states that he feels his discharge is unfair and that he has never recovered (physically or mentally) from fighting in the war.  

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 was born on 23 April 1950.  He enlisted in the Regular Army on 26 August 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11E (armor crewman).  On 28 June 1970, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 29 June 1970 for a period of 3 years.  He arrived in Vietnam on 14 August 1970. 

3.  On 11 January 1971, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 4 January 1971 to 
10 January 1971.  His punishment consisted of a reduction to E-3 (suspended), restriction, extra duty, and an oral reprimand.  On 13 January 1971, the suspended punishment was vacated.  

4.  On 1 May 1971, in accordance with his plea, the applicant was convicted by a special court-martial of being AWOL from 4 February 1971 to 1 April 1971.  He was sentenced to be confined at hard labor for 2 months, to forfeit $60 a month for 3 months, and to be reduced to E-1.  On 4 May 1971, the convening authority approved the sentence but suspended the confinement at hard labor for 6 months.  On 22 May 1971, the suspended portion of the applicant’s sentence to confinement was vacated.  On 15 June 1971, the unexecuted portion of the sentence to confinement was remitted.   

5.  The applicant went AWOL on 19 June 1971 and returned to military control on 23 June 1971.  On 17 July 1971, charges were preferred against the applicant for the AWOL period.  Trial by special court-martial was recommended.  

6.  On 26 July 1971, 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 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 not to submit a statement in his own behalf.  

7.  On 27 July 1971, additional charges were preferred against the applicant for assault and nine specifications of uttering bad checks.

8.  On 11 August 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

9.  The applicant departed Vietnam on 15 August 1971.

10.  Accordingly, the applicant was discharged with an undesirable discharge on 
17 August 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years, 8 months, and 22 days of creditable active service with 92 days of lost time due to being AWOL.  

11.  On 7 December 1977 and on 18 September 1978, the Army Discharge Review Board denied the applicant’s request for an honorable discharge.

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.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed basic combat training and advanced individual training.  In addition, he served over 22 months during his first enlistment.    

2.  The applicant’s record of service during his last enlistment included one nonjudicial punishment, one special court-martial conviction, and 92 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 or a general discharge.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  
 
4.  The type of discharge directed and the reasons therefore 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)                                         AR20080016830





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ABCMR Record of Proceedings (cont)                                         AR20080016830



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