IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090001226 


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, in effect, that at the time of his discharge he was not given a chance to defend himself and was told not to worry because his discharge would be automatically change to honorable in six months.

3.  The applicant states that his discharge was based on one incident and not his overall record.  He served his country honorably and was an excellent Soldier.  The applicant states that after returning from Vietnam he had 30 days left on his term of service before going absent without leave, after returning to the states the attitude of the American public left him confused and mentally depressed.  He asked for help, but got none so he returned to his family where he felt comfortable.

4.  The applicant provides a 101st Screaming Eagle Replacement Training School Letter of Commendation, dated 7 February 1970 and Headquarters, 101st Airborne Division (Airmobile) General Orders Number 13402, dated 
7 November 1970.

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 of the United States on 18 August 1969 and successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  The applicant arrived in the Republic of Vietnam on 23 January 1970 and was assigned to A Company, 1st Battalion (Airmobile), 506th Infantry, 101st Airborne Division.  While serving in Vietnam he was awarded the Combat Infantryman Badge, the Bronze Star Medal for meritorious service and the Army Commendation Medal for meritorious achievement.  He departed Vietnam on 
14 December 1970.  

4.  The applicant was assigned to the 533rd Transportation Company, at Fort Benning, Georgia on 20 January 1971.

5.  On 8 June 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for two specifications of failure to be at his appointed place of duty.

6.  Evidence of record shows the applicant was AWOL for the period 2 July 1971 through 25 May 1972.

7.  The applicant's court-martial charge sheet is not available.

8.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 
214 shows that he was discharged on 13 June 1972 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of in lieu of trial by court-martial with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed 1 year, 11 months, and 4 days of creditable active service of this term of service with 329 days of lost time due to being AWOL.

9.  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.

10.  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.

11.  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.

12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge was inequitable because it was based on one isolated incident.  However, evidence shows that he previously received one Article 15 prior to having court-martial charges preferred.  

2.  The Board acknowledges the applicant's combat service in Vietnam as well as his awards and decorations.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence that the applicant was any more under stress than the thousands of other Soldiers who honorably served in Vietnam or other combat zones under similar or even more stressful situations without having to go AWOL. 

3.  The applicant's records show that he received one Article 15 and had one lengthy period of AWOL.  He had completed a total of 1 year, 11 months, and 4 days of creditable active service with 329 days of lost time due to being AWOL. Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of an honorable or general discharge.

4.  Discharges under the provisions of chapter 10 of AR 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

5.  Although the applicant contends that he was told after six months his discharge would be upgraded, there is no policy or regulation within the Army which allows automatic upgrading of discharges.

6.  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 

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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)                                         AR20090001226





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ABCMR Record of Proceedings (cont)                                         AR20090001226



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