IN THE CASE OF:	  

		BOARD DATE:	        17 March 2009

		DOCKET NUMBER:  AR20080018161 


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.

2.  The applicant states that he proudly served two tours in Vietnam and his service record was impeccable.  He received the Army Commendation Medal, the Vietnam Service Medal with four bronze service stars, and the Vietnam Campaign Medal with Device 1960.  The applicant states that after he reenlisted he went home proudly wearing his decorations on his uniform only to be ridiculed, insulted, verbally assaulted, spat on, and called a baby killer.  

3.  The applicant states that he reported to his new duty station at Fort Meade, Maryland only to be greeted by a staff noncommissioned officer (NCO) during in-processing, asking him how did it feel to be a baby killer.  He got upset to the point of making him feel that he had to get away.  He became extremely angry and wanted nothing to do with the Army.  He went absent without leave (AWOL) several times for the way he was treated after returning home from Vietnam.

4.  The applicant also states, in effect, that he now sees his actions were not appropriate and he has great remorse for those actions.  If he had to do it all over again, he would take advantage of the opportunities given to him and stay in the military long enough to retire.  The applicant concludes like many other proud Soldiers who were treated as outcasts upon returning from the war, he was confused, upset, and felt less than human.  Now Soldiers returning from the war are treated as heroes and he does not understand how they are any different than him.

5.  The applicant provides no additional documentation in support of this case.

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 on 29 January 1968.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 64B (Heavy Vehicle Driver).  

3.  The applicant arrived in Vietnam on or about 11 October 1968.  He was honorably discharged on 27 February 1970 and immediately reenlisted on 
28 February 1970, for a 6-year term of service.  The applicant departed Vietnam on or about 15 June 1970, after participating in six campaigns.

4.  On 30 October 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of being AWOL for the periods 4 August through 27 September 1970 and 
19 October through 27 October 1970.

5.  On 8 December 1970, the applicant accepted NJP under Article 15, UCMJ for being AWOL for the period 12 November through 7 December 1970.

6.  Evidence of record shows that the applicant was AWOL for the periods 
3 January through 4 January 1971, 22 February through 4 March 1971, 8 March through 24 March 1971, and 26 March through 28 March 1971.

7.  A DD Form 458 (Charge Sheet), dated 24 August 1971, shows charges were preferred against the applicant for two specifications of being AWOL for the periods 14 April through 27 April 1971 and 30 April through 12 August 1971.


8.  On 9 September 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The applicant acknowledged in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant did not provide statements in his own behalf.

9.  On 27 September 1971, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200.  It was directed that the applicant be issued an Undesirable Discharge Certificate.  On 4 October 1971, the applicant was discharged and his service was characterization as under other than honorable conditions.  The applicant had completed 8 months and 22 days of creditable active service on his 6-year service obligation with a total of 246 days of lost time due to being AWOL and in confinement.

10.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 16 July 1974, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB determined that the applicant's discharge was proper and equitable.  The applicant again applied to the ADRB for an upgrade of his discharge.  On 18 August 1986, the ADRB reviewed and denied the applicant's request for an upgrade.  The ADRB again found that the applicant's discharge was proper and equitable.

11.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. At the time, an undesirable discharge was normally considered appropriate.   





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.  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.  The applicant requests that his undesirable discharge be upgraded.  However, his records show that he received two NJP’s and he had nine instances of being AWOL during his period of service.  He had completed
8 months and 22 days of creditable active service with a total of 246 days of lost time due to being AWOL and in confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore he has failed to establish a basis for an upgrade of his discharge to that of a general or an honorable discharge.

2.  The available evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations 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.



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      _______ _   _______   ___
               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)                                         AR20080018161



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ABCMR Record of Proceedings (cont)                                         AR20080018161



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