IN THE CASE OF:	  

		BOARD DATE:	  	  30 December 2008

		DOCKET NUMBER:  AR20080016947 


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, upgrade of his under other than honorable conditions discharge.

2.  The applicant states, in effect, his actual birth date is 30 September 1953 and he was only 16 years of age when he was recruited.  The applicant adds that he received orders to report to Fort Lewis, Washington; he describes his personal experiences while traveling across the United States; and states it was not his fault that his military orders were "not at hand when he got to Seattle at Fort Lewis to go to Vietnam."  He also states that he was filled with fear and wanted to get as far away from the Army as he could, and when he was told that he was going to be sent home, he had no questions.  He also states that he has felt ashamed and pained because he has two uncles who completed careers in the Armed Forces and they had nothing to say to him for years.  He states he is a career drug addict at the age of 54 and adds that, "I discover that as I look back at the situation that none of this was my faultful (sic), reason, transgression or course of direction belong to me."

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date of
31 October 1972; State of California, Summary of Parole Adjustment, undated; a 99-page electronic court docket, dated 20 November 2006; Board of Parole Hearings, Summary of Revocation Decision:  Hearing Waived/Screening Offer, dated 12 October 2006; The Salvation Army, Los Angeles Harbor Light Center, Los Angeles, California, letter, dated 19 December 2006; and Test Report for [Applicant], dated 16 January 2008.
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 military personnel records show he enlisted in the Regular Army for a period of 2 years on 15 April 1971.  The applicant’s records also show his date of birth is 30 September 1952 and, at the time of his entry on active duty, he was 18 years of age.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 57E (Laundry, Bath and Impregnation Specialist).

3.  The applicant’s military personnel records contain a DA Form 20 (Enlisted Qualification Record).  Item 38 (Record of Assignments), in pertinent part, shows that the applicant attended the Laundry, Bath, and Impregnation Specialist course while assigned to Company D, Quartermaster School Brigade, Fort Lee, Virginia from 27 June 1971 to 24 August 1971.  This item also shows he departed Fort Lee, Virginia on 25 August 1971 en route to Fort Lewis, Washington; was dropped from the rolls (DFR) for desertion on 13 October 1971, and assigned to Company A, U.S. Army Personnel Control Facility, Headquarters Command, Fort Leonard Wood, Missouri on 29 September 1972.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]) shows the applicant was in an absent without leave (AWOL) status for 381 days from 14 September 1971 to 28 September 1972.

4.  The applicant’s military personnel records contain a copy of Headquarters, U.S. Army Quartermaster Center and Fort Lee, Fort Lee, Virginia, Special Orders Number 170, dated 13 August 1971, that show the applicant was assigned to the U.S. Army Overseas Replacement Station, Fort Lewis, Washington, with a reporting date of 14 September 1971, for assignment to the Vietnam Transient Detachment.

5.  The applicant’s records contain a DA Form 2496-1 (Disposition Form), dated 2 October 1972, that shows, in pertinent part, the applicant surrendered to civil authorities at 1015 hours, 29 September 1972, at St. Louis, Missouri, and was returned to military control at 1230 hours, 29 September 1972.

6.  The applicant's military personnel records are absent a complete copy of his administrative separation packet.

7.  On an unspecified date, the Commander, Company A, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, recommended approval of the applicant’s request 
for discharge from the Army, under the provisions Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10 (For the Good of the Service).  The commander stated the applicant demonstrated to his immediate supervisor that he is unwilling to adjust to military service and that any further disciplinary or rehabilitative action would be futile.  The company commander’s endorsement shows, in pertinent part, that a Statement by the Applicant, Statement of Benefits, and DD Form 458 (Charge Sheet) were attached as enclosures; however, these documents are not filed in the applicant’s records.

8.  On an unspecified date, the Commander, U.S. Army Personnel Control Facility, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, recommended approval of the applicant’s request 
for discharge from the Army, under the provisions chapter 10 of Army Regulation 635-200.  The commander stated, in his opinion, the applicant will never be a productive Soldier and therefore, he recommended approval of the applicant’s request.

9.  On 26 October 1972, the Commander, U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, reviewed and approved the applicant’s request for discharge for the good of the service.

10.  The applicant's military personnel records contain a copy of Headquarters, 
U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, Special Orders Number 304, dated 30 October 1972.  These orders show the applicant was discharged under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, with separation program number (SPN) 246, and issued DD Form 258A (Undesirable Discharge Certificate).



11.  The applicant's military personnel records contain his DD Form 214 that shows he entered active duty on 15 April 1971 and was discharged on
31 October 1972, under other than honorable conditions in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with SPN 246 and issued a DD Form 258A.  The DD Form 214 also shows that at the time of his discharge the applicant had completed 6 months and 1 day of net active service this period.  Item 30 (Remarks), in pertinent part, shows the applicant had 381 days lost under Title 10, U.S. Code, section 972, from
14 September 1971 through 28 September 1972.

12.  The applicant's military personnel records document no acts of valor, significant achievement, or service warranting special recognition.

13.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

14.  In support of his application, the applicant provides the following documents:

     a.  The State of California, Summary of Parole Adjustment, undated, that documents the applicant's commitment offense, other convictions, criminal history, his adjustment to parole, and recommendation of a return to custody;

     b.  In the Municipal Court of Long Beach, Courthouse Judicial District, County o f Los Angeles, State of California, The People of the State of California vs. [Applicant], dated 20 November 2006, and Board of Parole Hearings, Summary of Revocation Decision:  Hearing Waived/Screening Offer, dated 12 October 2006, that document the processing of the applicant beginning 8 June 1993 with respect to his arrest, charges, arraignment, custody status, plea, conviction, sentencing, probation violation, arrest warrant, and disposition based on violation of parole;

     c.  The Salvation Army, Los Angeles Harbor Light Center, Los Angeles, California, letter, dated 19 December 2006, that advises it cannot provide services to the applicant until he is released from incarceration to the custody of a Harbor Light Representative for the Harbor Light Veteran's Program; and

     d.  Test Report for [Applicant], dated 16 January 2008, that document the applicant's reading scores.

15.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the 
separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of General and Undesirable Discharge Certificates.  Chapter 10 of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service in lieu of trial by court-martial.

16.  Army Regulation 635-5-1 (SPN Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN to be entered on the DD Form 214.  It identifies the SPN of “246” as the appropriate code to assign to enlisted Soldiers administratively discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of court-martial.

17.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

18.  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.

19.  Army Regulation 635-200, the version in effect at the time, provided that an undesirable discharge is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

20.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, his discharge under other than honorable conditions should be upgraded because he was only 16 years of age at the time and it was not his fault that he failed to report to Fort Lewis, Washington on time for further assignment to Vietnam.

2.  Records show the applicant was 18 years of age when he entered active duty, nearly 19 years of age when he went AWOL, and 20 years of age when his request for discharge for the good of the service was submitted to the separation authority.  Even if his date of birth was 30 September 1953, that would have made him almost 17 years and 5 months of age at the time of his enlistment.  There is no evidence that indicates the applicant was 16 years of age during his military service or that he was any less mature than other Soldiers of the same age who successfully completed their military service during this period.

3.  The evidence of record shows the applicant departed Fort Lee, Virginia en route to Fort Lewis, Washington when he went AWOL and remained in an AWOL status for a period of 381 days until he surrendered to civil authorities.  There is no evidence that the applicant was prevented from reporting to Fort Lewis, Washington on the directed reporting date.  Thus, it is reasonable to conclude that the applicant willingly remained in an AWOL status during this entire period until he voluntarily surrendered to civil authorities.  In this regard, there is no evidence that the applicant’s period of AWOL was the fault of any other person.  Therefore, the applicant provides insufficient evidence to support his claim that the period of his AWOL was not his fault or as a result of his own doing.

4.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  In the absence of evidence to the contrary, the presumption is the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

5.  The evidence of record shows the applicant had 381 days (i.e., more than
1 year) time lost during the period of service under review.  In addition, records show he completed only 6 months of his 2-year enlistment.  Thus, the evidence of record shows that the applicant’s record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

6.  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)                                         AR20080016947



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080016947



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1