IN THE CASE OF:	  

		BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090004551 


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 to a general, under honorable conditions discharge.

2.  The applicant states he enlisted at 17 years old for Vietnam.  He also wanted Ranger training.  He was told he had to be 18 years old for either of these.  He believes that he would have been a better Soldier if he had not been state-side because of his age.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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 military records show that he enlisted in the Regular Army (RA) on 28 January 1972.  His enlistment options were to take his basic combat training at Fort Ord, CA and to be assigned to the 82nd Airborne Division at Fort Bragg, NC upon completion of his initial entry training.  He completed his initial entry training and he was awarded military occupational specialty (MOS) 13B (field artillery basic).

3.  The applicant was assigned to a unit at Fort Bragg, NC when, on 24 April 1973, he was confined by civilian authorities on charges of possession of marijuana.  The applicant was convicted and sentenced to 3 months confinement.

4.  On 28 January 1974, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit without authority, for being absent without leave (AWOL) from
2-5 January 1974, and for being AWOL from 21-22 January 1974.

5.  The applicant was then AWOL from 21 May 1974 to 5 March 1975.

6.  On 27 March 1975, the applicant voluntarily requested discharge for the good of the service - in lieu of court-martial.  In conjunction with that request he signed a statement in which he acknowledged that he would normally be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He was also advised of the possible effects of an undesirable discharge and understood that he would be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He was also advised that his discharge would not automatically be upgraded after a certain amount of time.

7.  The applicant's request was approved by the appropriate authority.  Accordingly, on 21 April 1975 the applicant was discharged with an undesirable discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise 
the member concerning the elements of the offense or offenses charged, type of 
discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would 
normally be furnished an individual who was discharged for the good of the Service.

9.  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 did not choose Ranger training or assignment to Vietnam enlistment options.  As such, his inability to volunteer for this training and that assignment is not mitigating in his case.

2.  The applicant was convicted by civilian authorities for possession of marijuana, he accepted NJP for being AWOL from 2-5 January 1974 and from
21-22 January 1974; and he requested discharge in lieu of court-martial for being AWOL from 21 May 1974 to 5 March 1975.  Such a pattern of serious misconduct certainly warranted an undesirable discharge.

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090004551



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ABCMR Record of Proceedings (cont)                                         AR20090004551


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