IN THE CASE OF:	  

		BOARD DATE:	  5 May 2009

		DOCKET NUMBER:  AR20090001595 


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 be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that his discharge was excessively harsh, especially considering he received special recognition for his service in the Republic of Vietnam.  He states that he did not have a history of discipline problems while serving in the Republic of Vietnam, but that his discipline problems occurred after he returned to the United States.  He states his problems were aggravated by his undiagnosed post-traumatic stress disorder.  He concludes his statement by stating he now suffers from diabetes.  

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with a separation date of 25 February 1974. 

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 military personnel records show he enlisted in the Regular Army on 25 February 1971 for a 3-year period.  Records show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  

3.  Records show the applicant served in the Republic of Vietnam from 9 August 1971 to 14 March 1972 and that he was assigned to H Company, 75th Infantry Regiment, 3rd Brigade (Separate) and to Headquarters and Headquarters Company, 2nd Battalion, 5th Cavalry, 3rd Brigade, 1st Cavalry Division.  He was awarded the Army Commendation Medal (ARCOM) for his service in the Republic of Vietnam.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for being absent without leave (AWOL):  from 16 to 23 October 1972; from 25 February 1973 to 1 March 1973; and from 11 to 15 June 1973.

5.  On 1 February 1974, court-martial charges were preferred against the applicant for violation of Article 86 of the UCMJ, specifically for AWOL from on or about 5 July 1973 to on or about 18 January 1974.

6.  On 6 February 1974, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he understood that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 8 February 1974, the applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and further recommended an Undesirable Discharge Certificate.
9.  On 12 February 1974, the separation authority approved the applicant's request for discharge for the good of the service, directed that he be reduced to private (PV1)/pay grade E-1, and that he be furnished an Undesirable Discharge Certificate.

10.  On 25 February 1974, the applicant was discharged accordingly.  The applicant's DD Form 214 confirms he was discharged with a characterization of service of under conditions other than honorable and issued an Undesirable Discharge Certificate.  This form further confirms that he completed a total of
2 years, 5 months, and 3 days of creditable active service.  He had 212 days of time lost due to AWOL.

11.  On 30 November 1982, the Army Discharge Review Board denied the applicant's request to upgrade of his discharge.

12.  Army Regulation 635-200 (Personnel Separations - Enlisted Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  An undesirable discharge was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

13.  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.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSION:

1.  The applicant contends he should receive an upgrade of his discharge because his discharge was excessively harsh and that he served honorably in the Republic of Vietnam.  He further stated he suffers from diabetes.   

2.  The applicant's military personnel record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, in lieu of trial by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The applicant did serve in the Republic of Vietnam and was awarded the ARCOM for his service.  However, there is no record of the applicant performing any acts of valor.  As such, his Vietnam service is not sufficient to mitigate the 212 days of lost time.

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 that requirement.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20090001595



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001595



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1