IN THE CASE OF:	

		BOARD DATE:	  April 9, 2009

		DOCKET NUMBER:  AR20080018058 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service in Vietnam.  He also requests that his under other than honorable discharge be upgraded.

2.  The applicant states, in effect, that his DD Form 214 does not show he served in Vietnam.  He also states, in effect, that he would like his discharge upgraded because he was young at that time and admitted to his mistakes.  He has since continued to improve his life and now has peace with himself.  He is seeking assistance with counseling and getting his life back on track.

3.  In support of his application, the applicant provides copies of his permanent change of station orders, his DA Form 137 (Installation Clearance Record), and his DD Form 214.

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 records show he enlisted in the Regular Army (RA) in pay grade E-1 on 31 July 1970 for 3 years.  On the date of his enlistment in the RA, the applicant was 18 years and 6 months of age.  He served in military occupational specialty 64C, motor transport operator.

3.  The applicant was reported absent without leave (AWOL) on 12 January 1971.  He was returned to military control on 19 March 1971.  He was again reported AWOL on 5 April 1971 and dropped from the rolls.  He was returned to military control on 17 April 1971.

4.  On 7 May 1971, the applicant was convicted by special court-martial of two specifications of AWOL from 5 April 1971 to 12 April 1971 and from 19 April 1971 to 26 April 1971.  The applicant was sentenced to a forfeiture of $50.00 pay per month for 3 months, hard labor without confinement for 3 months (suspended for 3 months), and 45 days of restriction.  The sentence was adjudged on 19 May 1971 and approved on 11 July 1971.

5.  On 22 June 1971, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for absenting himself from his unit from 18 June 1971 to 22 June 1971.  The punishment imposed was a forfeiture of $29.00 per month for 1 month.

6.  The applicant submits, and his records contain, Headquarters, U.S. Army Training Center Infantry and Fort Dix, Special Orders Numbers 246, dated 8 September 1971, directing his reassignment from Fort Polk, Louisiana, to Vietnam with a reporting date of 3 October 1971.

7.  The applicant also submits and his records contain Special Orders Numbers 280, dated 7 October 1971, showing his arrival in Vietnam on 6 October 1971 and assignment to the 518th Adjutant General Personnel Service Company.

8.  The applicant further submits, and his records contain, 518th Adjutant General Personnel Service Company Special Orders Numbers 160, dated 8 June 1972, directing his departure from Vietnam on 21 June 1972 and reassignment to Fort Carson, Colorado, with a reporting date of 26 July 1972.

9.  The applicant submits a copy of his DA Form 137, dated 15 June 1972, showing he completed his installation clearance from Vietnam on 17 June 1972.

10.  The applicant was again reported AWOL on 2 November 1972 and dropped from the rolls of his unit on 7 December 1972.  He was apprehended by the Federal Bureau of Investigation and returned to military control on 23 May 1973.

11.  On 23 May 1973, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.  The applicant was charged with one specification of AWOL from 2 November 1972 to 3 May 1973.

12.  On 24 May 1973, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10.  In doing so, he acknowledged that he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, and as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected to submit a statement in his own behalf.

13.  In his statement, the applicant stated that from the time he departed AWOL he had not gotten his mind together.  When he joined the Army he told the Army recruiter he would join if the recruiter could take care of his traffic tickets and the recruiter told him that he would.  During his physical he was told that his hearing was not good and he could not be trained as a truck driver.  The Army sent him to engine machine training and to him this was worse that driving a truck.  During advanced individual training (AIT) he began feeling that something was missing.  He got a 3-day pass and went home, never thinking of going AWOL.  When the 3 days of leave was over he called in for an extension of 1 week.  He thought his request was approved.  He called in for an extension three more times.  On his way back to his unit he stopped at his mother's house in California and the next day he was notified of his grandmother's death.  He called his unit to get another extension and was advised that he was AWOL.  When he returned to his unit he started getting messed up with drugs.  He went home for 21 days and then turned himself in to the civilian police.  He spent 42 days in jail before the military police from Fort Bliss came to pick him up.  He does not know why, but he went AWOL again and was then picked up for a traffic violation that he thought the Army had fixed.  He got back to Fort Bliss and then left again.  He was given a special court-martial for all his AWOLs and was then sent to Fort Polk for another AIT.  He finished AIT, went home to get married, came back and got his orders to go to Vietnam.  He spent 8 months in Vietnam and served in acting pay grade 
E-5 while he was there.  When he returned to the U.S. he was stationed at Fort Carson.  In September 1973, everything started falling apart for him and he went AWOL.  All he asked for was to be out of the service.
14.  On 1 June 1973, the headquarters commander recommended approval of the applicant's request and recommended the issuance of an Undesirable Discharge Certificate.

15.  On 6 June 1973, the applicant's battalion commander recommended approval of the applicant's request and recommended the issuance of an Undesirable Discharge Certificate.  He stated that due to the applicant's poor military record and the period of alleged AWOL, no further effort should be made to rehabilitate him.

16.  On 26 June 1973, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued and that the applicant be reduced to pay grade E-1.

17.  The applicant was discharged on 26 June 1973 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  His character of service was shown as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He was credited with 2 years, 1 month, and 6 days of total active service.  He was also credited with 294 days of lost time due to AWOL.

18.  Item 22c (Foreign and/or Sea Service) of the applicant's DD Form 214 shows zero foreign and/or sea service credit.  Item 30 (Remarks) shows no service in the Republic of Vietnam (RVN).

19.  The applicant's records are absent any evidence of awards for meritorious achievement or performance during his period of service.

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

21.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.

22.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

23.  Army Regulation 635-200, paragraph 3-7b, also 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.

24.  Army Regulation 635-5 (Separation Documents), in effect at the time, specified that item 22c would contain the total amount of active duty served outside the continental limits of the United States during the period covered by the DD Form 214 and the last overseas theater in which the service was performed, e.g., "Foreign and/or Sea Service USARPAC [United States Army Pacific]" which is the theater command code.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record confirms that the applicant arrived in Vietnam on 6 October 1971 and departed on 21 June 1972, a period of 8 months and 15 days.  Therefore, he is entitled to have his DD Form 214, items 22c and 30, corrected to show "USARPAC 8 months and 15 days" and "RVN:  6 October 1971 to 21 June 1972," respectively.  Correction to item 22c does not require any adjustment to the other items in item 22 (Statement of Service) of the DD Form 214.

2.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

3.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 18 years and 6 months of age when he enlisted in the RA.  He was 19 and 20 years old, respectively, when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.  Upon his return to military control, he voluntarily requested discharge in lieu of facing a court-martial.  The applicant elected not to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.

4.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge or a general discharge.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  __x_____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing on his DD Form 214 in item 22c that he served in USARPAC for a period of 8 months and 15 days of foreign service, showing in item 30 that he served in the RVN from 6 October 1971 to 21 June 1972, and providing him a correction to his separation document that includes these changes.
2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to an upgrade of his undesirable discharge. 




      ____________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)                                         AR20080018058



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ABCMR Record of Proceedings (cont)                                         AR20080018058



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