IN THE CASE OF:	

		BOARD DATE:	  30 April 2009

		DOCKET NUMBER:  AR20090000892 


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 under honorable conditions discharge.

2.  The applicant states, in effect, that he served in Vietnam for 9 months with honor and distinction.  He further states upon his return to the United States he had a hard time adjusting to noncombat life and went absent without leave (AWOL). 

3.  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 was inducted into the Army on 12 February 1971.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 55B (Ammunition Storage Specialist).

3.  On 3 June 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for not being at his appointed place of duty.

4.  The applicant arrived in Vietnam and was assigned to 60th Ordnance Company, on 21 September 1971.  

5.  On 27 March 1972, the applicant accepted NJP under Article 15, UCMJ, for disobeying a lawful order from a noncommissioned officer.

6.  The applicant departed Vietnam on 18 April 1972.

7.  On 10 July 1972, the applicant accepted NJP under Article 15, UCMJ, for being AWOL for the period 5 June 1972 through 4 July 1972.

8.  A DD Form 458 (Charge Sheet), dated 5 March 1973, shows court-martial charges were preferred against the applicant for being absent AWOL for the period 18 August 1972 through 11 February 1973.

9.  On 13 March 1973, 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).

10.  The applicant indicated in his request that he made a mistake by coming into the Army and could not stand it anymore.  He further stated that since coming into the Army he had married and had a baby on the way and he wanted out so he could work and support his wife and baby on the way.  The applicant stated that if his requests was denied he would fill more hatred towards the Army and he would have no choice but go AWOL again.




11.  On 20 March 1973, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed that the applicant be issued an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 30 March 1973, the applicant was discharged with an undesirable discharge.  He completed a total of 1year, 6 months, and 25 days of creditable active service with 208 days of lost time due to AWOL.

12.  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.

13.  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.

14.  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 to an honorable discharge.  However, his records show that he received three Article 15s and had two instances of being AWOL.  Based on these facts, the applicant’s service 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.



2.  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.




      _______ _  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)                                         AR20090000892





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ABCMR Record of Proceedings (cont)                                         AR20090000892



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