IN THE CASE OF:	  

		BOARD DATE:	       2 JUNE 2009

		DOCKET NUMBER:  AR20090004232 


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 not informed of his right to representation.  He also contends that he served during the worst part of the war, the 1968 Tet offensive.  When he returned home, he reenlisted for duty in the Special Forces but was injured during basic airborne training.  The Army careerists harassed him because he was not capable of doing the training.  

3.  The applicant provides, in support of his application, copies of his two 
DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge). 

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 15 June 1967, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 12B (Combat Engineer). 

3.  On 29 September 1967, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for being absent without authority from a road march.  The punishment included a forfeiture of $25.00 pay per month for 1 month and 14 days restriction and extra duty.

4.  On 13 October 1967, the applicant departed Fort Leonard Wood, Missouri, for duty in the Republic of Vietnam.

5.  On 9 November 1967, the applicant was assigned for duty as a combat construction specialist with the 35th Engineer Battalion, in the Republic of Vietnam.

6.  On 19 October 1968, the applicant departed the Republic of Vietnam.

7.  On 27 November 1968, the applicant was assigned for duty as a combat engineer with the 91st Engineer Battalion, located at Fort Benning, Georgia.  

8. On 5 May 1969, the applicant reenlisted in the Regular Army for 4 years.  He had attained the rank of specialist four, pay grade E-4, and had completed 
1 year, 10 months, and 21 days of creditable active duty service.  

9.  On 7 June 1969, the applicant was enrolled in the Basic Airborne Course.  There is no available evidence of record showing that he completed this course of training.

10.  On 13 June 1969, the applicant accepted NJP for being absent without authority from his unit during the period from 0600 hours to 1230 hours on 
13 June 1969.  The punishment included a forfeiture of $44.00 pay per month for 1 month.

11.  On 14 July 1969, the applicant accepted NJP for being absent without leave (AWOL) during the period from 7 to 12 July 1969.  The punishment included a forfeiture of $38.00 pay per month for 1 month and 7 days restriction and extra duty.

12.  On 24 July 1969, the applicant departed Fort Benning, Georgia, for duty in Europe.  There is no available evidence of record showing that he reported for duty with the United States Army, Europe.

13.  On 11 March 1970, the applicant was convicted by special court-martial of AWOL (two specifications) and of escape from lawful confinement in the post stockade.   His sentence consisted of confinement at hard labor for 4 months and reduction to pay grade E-1.  He served 92 days in confinement and was released on 19 May 1970.

14.  On 28 January 1971, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from 20 May 1970 to 9 January 1971.

15.  On 28 January 1971, 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 under other than honorable conditions 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. 

16.  In his request for discharge, the applicant acknowledged that he understood 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), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

17.  On 11 February 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 11 February 1971, the applicant was discharged accordingly.  He had completed a total of 2 years, 6 months and 15 days of creditable active military service and had accrued 409 days of time lost due to AWOL and confinement.

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

19.  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.  However, at the time, the regulation provided for an undesirable discharge.

20.   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.

21.  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.

22.  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 not informed of his right to representation.  He also contended that the Army careerists harassed him because he was not capable of performing airborne training.

2.   The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The evidence of record clearly shows that he was afforded an opportunity to consult with legal counsel, and did so prior to submitting his request for discharge in lieu of trial by court-martial.

4.  The evidence of record also clearly shows that the applicant had a record of misconduct before he ever went to airborne training.

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 the aforementioned requirement.

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.




      _______ _   _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)                                         AR20090004232





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ABCMR Record of Proceedings (cont)                                         AR20090004232



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