DOCKET NUMBER:  AR20080017968 


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 a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he had combat service in Vietnam and was awarded decorations.  He contends that he has been a productive citizen since his discharge and that he believes clemency is warranted because he served his country proudly and the adverse effects of his discharge have affected his livelihood.  

3.  The applicant provides a DD Form 214 (Report of Transfer or Discharge) in support of his application.  Although his application indicates that he also provided reference letters, these letters are not available.  

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 (RA) on 25 September 1970 for a period of 3 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 67N (helicopter repairman).  He arrived in Vietnam on 9 June 1971.      

3.  On 10 February 1972, while in Vietnam, nonjudicial punishment was imposed against the applicant for violating a lawful general order (being in an off-limits area) and for forgery.  His punishment consisted of a forfeiture of pay and restriction. 

4.  The applicant was transferred to the United States on 10 April 1972.

5.  The applicant went absent without leave (AWOL) on 5 July 1972 and returned to military control on 25 August 1972.  On 6 September 1972, charges were preferred against the applicant for the AWOL period.

6.  On 6 September 1972, 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 (Personnel Separations – Enlisted Personnel), 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 (VA) 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 spent 10 months in Vietnam, 3 months working maintenance and 7 months as a Huey crew chief, and that he was requesting a general discharge. 

7.  On 15 September 1972, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

8.  Accordingly, the applicant was discharged with an undesirable discharge on 
21 September 1972 under the provisions of Army Regulation 635-200, chapter 
10, for the good of the service.  He had served a total of 1 year, 9 months, and 20 days of creditable active service with 67 days of lost time due to AWOL.  His awards included the Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two awards of the Overseas Service Bar, National Defense Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

9.  There is no indication in the available records that the applicant applied to the Army Discharge Review Board for a discharge upgrade within its 15-year statute of limitations.

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, an undesirable discharge was normally considered appropriate. 

11.  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.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

2.  The applicant’s combat service in Vietnam and his awards and decorations were noted.  However, his record of service included one nonjudicial punishment and 67 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 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)                                         AR20080017968



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ABCMR Record of Proceedings (cont)                                         AR20080017968



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