IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080018606 


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 undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that upon his return from Vietnam, his parents had divorced and left his brothers and sisters alone; therefore, he had to take care of his siblings. 

3.  The applicant provides no additional documentary evidence in support of this 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's records show he enlisted in the Regular Army on 
6 September 1966.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (cook).  He served in Vietnam from 15 February 1967 to 15 February 1968.  The highest rank he attained while serving on active duty was specialist four (SP4)/pay grade E-4.

3.  The available records do not show any significant acts of achievement or valor during his military service.  

4.  The applicant was convicted by special courts-martial on three occasions.

   a.  on 19 September 1968 he was found guilty of being absent without leave (AWOL) from 15 August 1968 to 10 September 1968;

   b.  on 7 March 1969 he was found guilty of being AWOL from 4 February to    9 February 1969 and from 12 February to 21 February 1969; and
   
   c.  on 10 October 1969 he was found guilty of being AWOL from 5 June to
27 August 1969 and from 5 September to 8 September 1969.
  
5.  On 23 March 1970, charges were preferred against the applicant for being AWOL from on or about 16 November 1969 to on or about 22 February 1970.

6.  On 28 March 1970, the applicant acknowledged that he had consulted with counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He also acknowledged that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  The applicant subsequently voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel 


Separations – Enlisted Personnel), chapter 10 (for the good of the service – in lieu of court-martial) for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to his request.

8.  On 9 April 1970, the intermediate commanders recommended approval of the applicant's voluntary request for discharge.  They recommended the applicant receive an Undesirable Discharge Certificate.

9.  On 16 April 1970, the separation authority approved the applicant's request for discharge and directed that he be given an Undesirable Discharge Certificate.  On 21 April 1970, the applicant was discharged accordingly.  He had completed a total of 2 years, 6 months, and 19 days of creditable active military service with 391 days of lost time due to AWOL and confinement.

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

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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.  

13.  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 was convicted by special courts-martial on three occasions and charges were pending for a fourth.  The applicant had total AWOL time of 226 days.  This pattern of serious misconduct warranted an undesirable discharge.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant had to have admitted guilt and requested discharge in lieu of court-martial.

3.  The applicant's records show that he had 391 days of total lost time due to AWOL and confinement.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  While the applicant served in Vietnam, such service does not excuse misconduct.  Additionally, if the applicant was experiencing a hardship as a result of his parent's divorce, he could have applied for a hardship discharge.  There is no evidence that the applicant told his chain of command he was experiencing a hardship or requested any assistance from his chain of command or other available resources to resolve his situation.  As a result, there is no basis for granting the applicant's requested relief.

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)                                         AR20080018606



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ABCMR Record of Proceedings (cont)                                         AR20080018606



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