IN THE CASE OF:	  

		BOARD DATE: 	        4 June 2009 

		DOCKET NUMBER:  AR20090002980 


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 honorable.

2.  The applicant states, in effect, that he was told his discharge would be under honorable conditions.  He would never have signed any papers had he known his discharge would be under other than honorable conditions.  He did not know that he was separated from the service with less than an honorable characterization of service until he applied for Department of Veterans Affairs (VA) benefits.  He says that he encountered racial prejudice and was told that he would never make it in Vietnam.  He states that a friend and he were asked to leave a movie theater in Fayetteville, North Carolina, and were followed by persons in a truck that waved a confederate flag.  They started to run and became separated.  The applicant found a United Service Organization (USO) center and told the people there what had happened.  They immediately called the military police to locate his friend.  This was his first encounter with post traumatic stress disorder (PTSD).  He has had a lot of problems over the years.  He has not been able to keep a steady job.  His health is failing.  He has nerve damage in his neck, diabetes, and carpal tunnel in both wrists.  The Social Security Administration and the VA are denying him benefits.  The applicant contends that he would not hesitate to serve again if he could.  He is in need of assistance.  Everybody deserves a second chance in life and he asks that this be made right for him.

3.  The applicant provides no additional documentation 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.  On 22 November 1968, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was subsequently assigned duty with the United States Military Academy located at West Point, New York.

3.  On 1 December 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for entering the town of Highland Falls, New York with a suspended pass.  The punishment included reduction to pay grade E-3.

4.  On or about 5 August 1970, the applicant was absent without leave (AWOL).  He was returned to military control on or about 23 March 1971.

5.  The applicant’s discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was administratively discharged on 15 April 1971, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 1 year, 9 months and 4 days of creditable active duty and he had 230 days of lost time due to being AWOL and in confinement.

6.  On 14 June 1977, the Army Discharge Review Board (ADRB) reviewed the applicant's discharge under the provisions of the Special Discharge Review Program.  The ADRB determined that he had been properly discharged.  On 
14 August 1980, the ADRB reviewed the applicant’s case and again determined the applicant’s discharge was both proper and equitable and denied his request for an upgrade.

7.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) 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.

8.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 86, for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was told his discharge would be under honorable conditions.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record of service.

3.  The applicant was AWOL 230 days and there is no evidence available to show that he had any mitigating circumstances for being AWOL.  Additionally, the applicant has not provided any evidence showing that he suffered from PTSD as a result of any of his experiences while in the military.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

5.  A desire to obtain entitlement to VA benefits is not justification for an upgrade of an individual's discharge.

6.  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.




      __________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)                                         AR20090002980



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ABCMR Record of Proceedings (cont)                                         AR20090002980



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