IN THE CASE OF:	  

		BOARD DATE:	        30 APRIL 2009

		DOCKET NUMBER:  AR20090000880 


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.

2.  The applicant states:

	a.  that he voluntarily enlisted in the U.S. Army, served his country honorably while in Vietnam, and was a good Soldier;

	b.  shortly after returning home from Vietnam, he was told that he was being shipped to the Middle East;

	c.  he was told when he enlisted that he would only have to serve in one battle zone, which he had done in Vietnam;

	d.  he feels that he was unjustly discharged based on the social and political time in 1973; and

	e.  when he was released from the stockade, he asked to be placed in another company, but was told "no."  He felt that he would receive unfair treatment if he were placed back in his company, so instead, he was discharged.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal From the Armed Forces of the United States), dated 
25 November 2008; a self-authored statement, dated 25 November 2008 and 
10 letters of support from his friends and fellow associates.

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 30 June 1970 for a 4-year term of service.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 62C (Motor Transport Operator).  

3.  The applicant arrived in Vietnam and was assigned to Headquarters and Headquarters Company, 88th Supply and Service Battalion on or about 
12 August 1971.  

4.  On 9 October 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for sleeping on his guard post.

5.  On 10 January 1972, the applicant accepted NJP under Article 15, UCMJ for leaving his place of duty without being properly relieved.

6.  The applicant departed Vietnam on 25 April 1972.

7.  On 27 June 1972, the applicant accepted NJP under Article 15, UCMJ for failing to be at his appointed place of duty.

8.  The applicant's records show he was confined by civilian authorities for the period 20 June 1972 through 23 June 1972.

9.  The applicant's records show that he was absent without leave (AWOL) for the period 10 July 1972 through 6 August 1972.


10.  On 18 October 1972, the applicant accepted NJP under Article 15, UCMJ for operating a passenger vehicle while drunk.

11.  On 6 February 1973, the applicant accepted NJP under Article 15, UCMJ for operating a passenger vehicle in a reckless manner.

12.  The applicant's records show that he was AWOL for the period 9 February 1973 through 13 March 1973.

13.  On 4 April 1973, the applicant’s commander signed an elimination packet on the applicant for separation under the provisions of Army Regulation 635-200, chapter 13 for unfitness.  The reason cited by the commander was the applicant had 8 offenses which resulted in a total of 65 days bad time.  

14.  On 5 April 1973, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  The applicant was advised of the impact of the discharge action.  The applicant signed a statement indicating that he was advised he was being recommended for discharge under the provisions of Army Regulation 635-200, chapter 13.  The applicant declined counsel and waived his right to be heard by a board of officers.  

15.  The applicant submitted a statement on his own behalf that stated he wanted out of the Army for the following reasons:

	a.  he had more than two years of good time and served in Vietnam;

	b.  he did not like the way the Army runs things;

	c.  he had been screwed over too many times;

	d.  too many people telling you what to do;

	e.  he had done what is least required by someone who was drafted and feels as if he had fulfilled his duties;

	g.  he did not understand the Army; and 

	h.  he did not have enough time to himself.

16.  The applicant's records show that he was AWOL during the period 16 April 1973 through 2 May 1973.


17.  The appropriate authority approved the recommendation and directed the applicant receive an Undesirable Discharge Certificate under the provisions of chapter 13 of Army Regulation 635-200 for unfitness.  On 2 May 1973, he was separated from the service after completing 2 years, 7 months, and 11 days of creditable active service with 82 lost days due to AWOL and confinement.

18.  The applicant provided a self-authored statement, dated 25 November 2008. The applicant stated that he enlisted in the Army in June 1970.  After completing his training he was awarded military occupational specialty 64C.  He went to Vietnam in 1971 to 1972.  While there he served as a truck driver and worked in personnel.  When he came back from Vietnam he had a real hard time adjusting to the new Army.  During that time there was unrest between whites, African Americans, and Latinos.  

19.  The applicant further stated that in January 1973 he was informed that he was going to the Middle East.  He explained that he had already been to one battle zone and his enlistment said that he to only had to go to one battle zone.  The applicant stated that he was told that he was going and that orders were already drawn.  He was told the only way to get out of going was to go AWOL, otherwise he was going.  He packed a few things and went AWOL; after 28 days, he turned himself in.

20. The applicant stated after spending 3 weeks in the stockade, he was sent back to his old unit, even after he explained that he would go back to any other unit rather than his previous unit.  He was told that he would not tell the U.S. Army what he will or will not do.  The applicant stated, at that time, that being a Vietnam veteran he should not have gotten the discharge he received.  "I have realized throughout my lifetime, being a veteran of a foreign war has taught me many things.  I am proud to be an American, and proud that I served our country. I am proud to be a good father, grandfather, and husband.  Furthermore, I realize that I can't change the actions from my past - I was 19 years old.  I have grown because of those actions."

21.  The applicant provided ten letters of support from friends and associates.  The authors all stated that they have known the applicant for many years.  They stated, in effect, that the applicant is a helpful, caring, and reliable person.  He is well respected and active in his community.  The authors stated that the applicant is a hard worker and is good father and husband.  He is a proud and honorable person with passionate convictions for what the American flag stands for.



22.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, then in effect, contained the policy and outlined the procedures for separating individuals for unfitness when they were involved in frequent incidents of a discreditable nature with civil or military authorities and it was established that further efforts at rehabilitation were unlikely to succeed or they are not amenable to rehabilitation measures.

23.  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.  

24.  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's post-service achievements and conduct are noteworthy.  However, post service conduct alone is not a basis for upgrading a discharge, and upon review, the applicant's post service conduct is not sufficient to mitigate his indiscipline in the Army during his enlistment.  

2.  The applicant's records show that he received five Article 15s (two while in Vietnam), and had three instances of AWOL during his enlistment.  The applicant had completed 2 years, 7 months, and 11 days of his 4-year enlistment with a total of 82 lost days due to AWOL and confinement.  Based on these facts, the applicant’s service during his enlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.  


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.




      _______ _XXX   _______   ___
               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)                                         AR20090000880





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ABCMR Record of Proceedings (cont)                                         AR20090000880



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