IN THE CASE OF:	

		BOARD DATE:	        9 July 2009

		DOCKET NUMBER:  AR20090003585 


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 he was young at the time and that the use drugs were his downfall.  The applicant further states he made some bad decisions.  In addition, he states that he received an honorable discharge while serving in Vietnam.

3.  The applicant provides no additional documentation in support of this case.

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 born on 28 January 1949.  He was inducted into the Army of the United States on 7 April 1969 and successfully completed basic combat training, advanced individual training, and he was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).  

3.  The applicant arrived in the Republic of Vietnam on 15 November 1969 and was assigned to A Company, Troop Command, U.S. Army Depot (Qui Nhon). 

4.  On 28 February 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for sleeping on his post.

5.  On 4 April 1970, the applicant accepted NJP under Article 15 UCMJ for two specifications of failure to be at his appointed place of duty.

6.  On 14 April 1970, the applicant accepted NJP under Article 15 UCMJ for two specifications of disobeying a lawful order.

7.  On 11 November 1970, the applicant accepted NJP under Article 15 UCMJ for being absent without leave (AWOL) for the period 30 October 1970 through 
8 November 1970.

8.  The applicant departed Vietnam on 14 November 1970.  On 16 November 1970, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.  He completed 1 year, 7 months, 10 days of creditable active service.

9.  On 19 November 1970, the applicant enlisted in the Regular Army (RA) for a 6-year term of service.  On 17 December 1970, the applicant returned to the Republic of Vietnam and was assigned to the 1st Army Postal Unit.

10.  On 21 April 1971, the applicant accepted NJP under Article 15 UCMJ for disobeying a lawful order.

11.  Evidence of record shows that the applicant was AWOL for the periods:

	a.  10 May 1971 through 26 May 1971;

	b.  1 June 1971 through 5 June 1971;



	c.  10 August 1971 through 2 September 1971; and 

	d.  6 September 1971 through 12 December 1972 [dropped from rolls on 
5 October 1971].

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

13.  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 5 February 1973 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 9 months and 20 days of creditable active service of this term of service with 506 days of lost time due to being AWOL.

14.  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.

15.  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.

16.  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 young at the time and that the use of drugs was his downfall.  Evidence of record shows that the applicant was age 
20 years, 2 months, and 10 days at the time his induction into the Army.  He had 
completed basic training and advanced individual training without any problem.  In addition, he successfully completed his first term of service after being induction into the Army.  He enlisted in the RA for a second term of service demonstrating that he possessed the ability to successfully perform as a Soldier. 

2.  Furthermore, there is no evidence in his available records that show he sought assistance from his chain of command, a chaplain, or the Army's Alcohol and Drug Prevention and Control Program before going AWOL.  All of these factors refute his contention that he was too young at the time and that the use of drugs was his downfall.

3.  The applicant's records show that he received five Article 15s and had four instances of AWOL, including one lengthy period of AWOL on his second term of service.  He had completed  a total 2 years and 5 months of creditable active service with 506 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.  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 

________  ________  ________  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)                                         AR20090003585





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ABCMR Record of Proceedings (cont)                                         AR20090003585



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