IN THE CASE OF:	  

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20080019842 


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 (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that at the time of his induction he tried to forget the religious teachings he experienced all of his life.  However, this made it very hard to fulfill his oath to his country.  He states that what he did was wrong and he wishes he would have died on duty.  He further states that he has tried to live his life as honorable as possible for the past 37 years to make up for his past.

3.  The applicant provides no documentation 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’s record shows he was inducted into the Army of the United States (AUS) and entered active duty on 6 February 1969.  He was trained in and awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman), and the highest rank he attained and held while serving on active duty was private/E-2 (PV2).  His record documents no acts of valor, significant achievement or service warranting special recognition.  

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in Item 41 (Awards and Decorations) that he earned the National Defense Service Medal (NDSM) and Marksman Marksmanship Qualification Badge with Rifle Bar during his tenure on active duty.  Item 44 (Time Lost Under Section 972 Title 10 United States Code and Subsequent to Normal Dates ETS) shows he accrued a total of 831 days of time lost while absent without leave (AWOL) during the periods 
2 July 1969 through 11 August 1970, 1 October 1970 through 5 February 1971, and 6 February through 28 November 1971.  The applicant’s DA Form 20 further shows he was on orders to serve in the Republic of Vietnam during his first period of AWOL.  

4.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial, and that he received an UD on 22 December 1971.  This document also confirms he completed a total of 6 months and 6 days of creditable active military service and that he accrued 851 days of time lost due to being AWOL.  It further shows that during the period covered by the DD Form 214, he earned the NDSM and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  The applicant authenticated this document with his signature on the date of separation.  

5.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 
15-year statute of limitations.  

6.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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 (UOTHC) is normally considered appropriate.  However, the separation authority can authorize a general, under honorable conditions discharge (GD) or an honorable discharge (HD) if warranted by the member's overall record of service. At the time of the applicant's separation the regulation provided for the issuance of an UD.   

7.  Paragraph 3-7a of Army Regulation 635-200 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.

8.  Paragraph 3-7b of the same regulation provides that a GD 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's contention, in effect, that his UD should be upgraded to an HD based on his good post service conduct was carefully considered.  However, this factor alone is not sufficiently mitigating to support an upgrade of his discharge at this late date.  

2.  The available evidence does not include a separation packet containing the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly constituted DD Form 214 that confirms he had accrued 851 days of lost time due to being AWOL, and identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice (UCMJ).  Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  
4.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition, and was not sufficiently meritorious to support the issuance of an HD or GD by the separation authority at the time of the applicant’s discharge, nor does it support an upgrade of his discharge at this time.  The applicant’s UD accurately reflects his overall record of service.

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

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)                                         AR20080019842



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ABCMR Record of Proceedings (cont)                                         AR20080019842



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