IN THE CASE OF:	  

		BOARD DATE:	        5 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090001814 


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.

2.  The applicant states that he served two terms in Vietnam and received two discharges.  He adds that the first discharge was characterized as honorable and the second discharge was characterized as under conditions other than honorable because he was absent without leave (AWOL) for 88 days.  He explains that the 200 days of AWOL counted against him by the Army included his time on leave, in jail, and awaiting sentencing and, therefore, the number of days of AWOL is incorrect.  The applicant states that he was given a leave of absence to go see his father who was dying in the hospital.

3.  The applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), a letter from the Department of Veterans Affairs (VA), and a VA Form 21-4138 (Statement in Support of Claim).

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 record shows he was inducted into the Army of the United States on 26 October 1965.  On 28 May 1967, he was honorably discharged for immediate enlistment.  On 29 May 1967, he enlisted in the Regular Army.

3.  On 9 September 1968, the applicant was convicted by a summary court-martial for failing to go to his appointed place of duty on 19 August 1968 and of being AWOL from his unit from 27 August 1968 to 6 September 1968.  His punishment consisted of reduction to the grade of private first class (E-3), forfeiture of $70.00 pay per month for 1 month, extra duty for 30 days, and restriction for 30 days.

4.  The VA Form 21-4138 shows that on 1 December 2008, the applicant filed a service-connected claim.

5.  There are no documents in the applicant's file that provide the facts and circumstances pertaining to his discharge proceedings under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.

6.  The applicant's DD Form 214 shows that he was discharged for the good of the service in lieu of court-martial under the procedures of Army Regulation 
635-200, chapter 10, on 23 June 1969.  His service was characterized as under conditions other than honorable.  The applicant had served 1 year, 3 months, and 3 days during his current enlistment with a total of 292 days lost under Title 10, U.S. Code, section 972.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

8.  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.

9.  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.

10.  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.

11.  The same regulation defines time lost as a period of more than 1 day during which time a member on active duty is unable to perform duty because of:  (1) desertion; (2) absence without proper authority; (3) confinement under sentence; (4) confinement while awaiting trial or disposition of member's case if trial results in conviction; (5) intemperate use of drugs or alcohol; and (6) disease or injury, the result of member's own misconduct.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence and the applicant has failed to provide any evidence to show that the 292 days of lost time listed on his DD Form 214 are incorrect.  As specified in the regulation, lost time is any period of more than 1 day that a Soldier is unable to perform duty because of "misconduct."  Absent such evidence, regularity must be presumed in this case.

2.  The applicant has also failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20090001814



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ABCMR Record of Proceedings (cont)                                         AR20090001814



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