BOARD DATE:	  30 July 2009

		DOCKET NUMBER:  AR20090004367 


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.  He states, in effect, that he was a 17-year old high school drop out at the time of his enlistment and feels that the undesirable discharge issued to him was unjust.  He states that he served his country honorably in Vietnam and regrets not being the Soldier that he had the opportunity to be.  He requests forgiveness for his behavior and actions when he was 18 and 19 years old.

3.  The applicant provides copies of:

	a.  his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 26 June 1972;

	b.  his Undesirable Discharge Certificate, dated 26 June 1972; and

	c.  Headquarters, U.S. Army Armor Center and Fort Knox, Special Orders Number 130, dated 21 June 1972.

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 19 August 1951.  He enlisted in the Regular Army on 27 December 1968.  He was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 19 June 1969, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) for the period 12 April 1969 through 22 May 1969.

4.  On 25 February 1970, he was convicted by a special court-martial of being AWOL for the period 28 October 1969 through 30 January 1970.  His sentence consisted of forfeiture of $25.00 per month for 1 month, confinement at hard labor for 30 days, and reduction to the rank of private/E-1.

5.  On 12 April 1971, he was convicted by a special court-martial of three specifications of being AWOL during the periods 29 March 1970 through 26 April 1970, 10 May 1970 through 16 September 1970, and 4 October 1970 through 4 March 1971.  His sentence consisted of confinement at hard labor for 6 months and forfeiture of $40.00 per month for 6 months.

6.  He arrived in the Republic of Vietnam on an unknown date and was assigned to Company D, 17th Infantry.  He was authorized 14 days of leave and departed Vietnam on or about 29 February 1972.

7.  A DD Form 458 (Charge Sheet), dated 5 May 1972, shows charges were preferred against the applicant for being AWOL for the period 14 March 1972 through 2 May 1972.

8.  On 16 May 1972, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an undesirable discharge certificate, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his behalf.

9.  He submitted a statement in his own behalf in which he stated, "This is my recognition for the fact I cannot adapt to military life.  I entered the service 8 January 1969 on a 3-year enlistment.  The first time I went AWOL was in AIT and the reason was I wanted a change of life.  I just don't like the way the Army runs my life."  He continued that his biggest problem was that his wife and daughter could not stand to have him away from home and that he had a job waiting for him even if got an undesirable discharge.  He stated that he was tired of doing wrong, did not want to go back to duty, and requested to be discharged.

10.  On 16 June 1972, the appropriate authority approved his request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be issued an Undesirable Discharge Certificate.  On 26 June 1972, he was discharged accordingly.  He had completed 2 years, 2 months, and 17 days of creditable active service with 470 days of lost time due to AWOL and confinement.

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.  At the time, an undesirable discharge was normally considered appropriate.

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 (emphasis added), 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 contends that he was young at the time and that his undesirable discharge was unjust.  The evidence of record shows that he was 17 years, 4 months, and 9 days of age at the time enlisted in the Army.  Many Soldiers enlist in the Army at age 17 and demonstrate the maturity to successfully complete their terms of enlistment.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline during his active duty service.

2.  His records show that he received one Article 15, he was twice convicted by a special court-martial, and he had six instances of AWOL in addition to his AWOL while on leave from Vietnam during his enlistment.  He had completed 2 years, 2 months, and 17 days of creditable active service with 470 days of lost time due to AWOL and confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general or honorable discharge.

3.  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)                                         AR20090004367



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ABCMR Record of Proceedings (cont)                                         AR20090004367



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