IN THE CASE OF:	  

		BOARD DATE:	       14 MAY 2009

		DOCKET NUMBER:  AR20090001667 


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 an honorable discharge.  

2.  The applicant states that he was drafted at the time of the war [Vietnam] and he was the first born of his father and mother.  He states, in effect, that he waited so long to submit his request because a friend, who is a veteran, told him he would help him work on his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  His paperwork got lost so he is trying to get his records corrected himself.  

3.  The applicant provides a copy of his DD Form 214; a program from the Oxford Fire Company, 2007 Annual Banquet and Dance; a Life Membership Certificate from the Oxford Fire Company; and his birth certificate, 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 was inducted into the Army of the United States on 17 October 1967 (his DD Form 214 incorrectly reflects 18 October 1967).  At the completion of basic combat training and advanced individual training, he was awarded military occupational specialty 36K (wireman).  

3.  On 17 January 1968, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 5 January 1968 to 17 January 1968.

4.  The applicant was convicted by a summary court-marital on 1 July 1968 of being AWOL from 3 March 1968 to 15 June 1968.  He was sentenced to perform hard labor without confinement for 30 days and a forfeiture of $60.00 pay for one month.  

5.  The applicant was convicted by a special court-martial on 30 July 1968 of being AWOL from 9 July 1968 to 15 July 1968.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $68.00 pay for 4 months.  

6.  Charges were preferred against the applicant on 29 May 1969 for being AWOL from 18 September 1968 to 24 May 1969.

7.  On 10 June 1969, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life.  He also acknowledged that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an undesirable discharge was issued.  He did not submit statements in his own behalf.

8.  On 14 July 1969, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10 with issuance of an Undesirable Discharge Certificate.

9.  Accordingly, the applicant was discharged from active duty on 14 July 1969 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an undesirable discharge.  He had completed 6 months and 1 day of active military service with 428 days of lost time due to AWOL and confinement.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's statements were noted.  However, these issues are not sufficiently mitigating to grant relief in this case.  

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

3.  The applicant's record of service shows he received one Article 15, one summary court martial, and one special court-martial for being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory.  Therefore, he is not entitled to either a general discharge or an honorable discharge.
4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge.

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)                                         AR20090001667





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ABCMR Record of Proceedings (cont)                                         AR20090001667



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