IN THE CASE OF:	 

		BOARD DATE:	       16 April 2009

		DOCKET NUMBER:  AR20080019535 


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 that his undesirable discharge be upgraded to a general discharge.

2.  The applicant states that he was not afforded a lawyer or allowed to appear in person at a hearing.  He also contends that he was determined to be psychologically unfit prior to his discharge.

3.  The applicant provides no documentary evidence in support of his 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 enlisted in the Regular Army on 12 September 1967 for a period of 3 years.
3.  On 26 October 1967, while in basic combat training, nonjudicial punishment was imposed against the applicant for disobeying a lawful order.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  The applicant completed basic combat training and advanced individual training in military occupational specialty 12A (combat engineer).

5.  On 1 February 1968, contrary to his plea, the applicant was convicted by a special court-martial of disobeying a lawful order.  He was sentenced to pay $25.00 per month for 2 months.  On 6 February 1968, the convening authority approved the sentence.

6.  The applicant arrived in Vietnam on 7 March 1968.

7.  On 12 June 1968, while in Vietnam, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order.  His punishment consisted of a reduction to E-2.

8.  On 25 September 1968, while in Vietnam and contrary to his plea, the applicant was convicted by a summary court-martial of disobeying a lawful order.  He was sentenced to pay $60.00 and placed on restriction for 30 days.  On 25 September 1968, the convening authority approved the sentence.

9.  The applicant was transferred to the United States on 4 March 1969.

10.  On 23 October 1969, in accordance with his plea, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 30 September 1969 to 13 October 1969.  He was sentenced to perform hard labor for 45 days, to forfeit $100.00 pay per month for 1 month and to be reduced to E-1.  On 24 October 1969, the convening authority approved the sentence.

11.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, a DD Form 458 (Charge Sheet) shows the applicant went AWOL on 11 November 1969 and returned to military control on 30 March 1970.  In April 1970, charges were preferred against the applicant for the AWOL period.

12.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with an undesirable discharge on 6 May 1970 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service.  He had served a total of 2 years, 1 month, and 18 days of creditable active service with 188 days of lost time due to AWOL and confinement.

13.  There is no evidence of record which shows the applicant was diagnosed with any mental condition prior to his discharge on 6 May 1970.

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

15.  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.

16.  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.

17.  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.

DISCUSSIONS AND CONCLUSIONS:

1.  The applicant’s contentions that he was not afforded a lawyer or allowed to appear in person at a hearing relate to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, it appears the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  Although the applicant contends that he was determined to be psychologically unfit prior to his discharge, there is no evidence of record and the applicant has provided no evidence to support this contention.
3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  Therefore, there is no basis for granting the applicant's request.

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)                                         AR20080019535



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ABCMR Record of Proceedings (cont)                                         AR20080019535



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