IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090004750 


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 or general, under honorable conditions.   

2.  The applicant states that he made some poor choices as a young man and regrets them now.  He was absent without leave (AWOL) 2 months before his discharge.  For the past 40 years he has been a model citizen.  He has always had a job and paid his taxes.  He worked as a part time corrections officer.  He has absolutely no marks on his driver's license, not even a speeding ticket.  He also states that he earned the National Defense Service Medal, Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  He contends that he should be eligible for medical treatment from the Department of Veterans Affairs (VA) and to receive a military funeral.

3.  The applicant provides no documentary evidence 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 10 January 1968, the applicant, at 20 years and 8 months of age, was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 94B (Cook).

3.  On 1 May 1968, while still in training, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for sleeping on fire guard.  The punishment included a forfeiture of $25.00 pay per month for 1 month and 7 days restriction and extra duty.

4.  On 10 May 1968, the applicant departed Fort Dix, New Jersey, for duty in the Republic of Vietnam.

5.  On 31 May 1968, the applicant was assigned for duty as a cook with Headquarters Detachment, United States Army Marine Maintenance Activity, Vietnam.  He served with this unit until 24 May 1969, when he returned to the United States for duty at Fort Dix, New Jersey.

6.  On 2 September 1969, the applicant was AWOL.  On 2 March 1975, the applicant returned to military control at Fort Dix, New Jersey.

7.  On 4 March 1975, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from on or about 2 September 1969 to on or about 1 March 1975 (2006 days).  This included 1885 days lost subsequent to his normal expiration term of service (ETS).

8.  On 5 March 1975, 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, under the provisions of Army Regulation 635-200, chapter 10. 

9.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  

10.  On 17 March 1975, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 3 April 1975, the applicant was discharged accordingly.  He had completed a total of 1 year, 8 months, and 24 days of creditable active military service and had accrued 2006 days of time lost due to AWOL.

11.  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.

12.  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.

13.  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.

14.  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.

15.  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 should be eligible for medical treatment from the VA and to receive a military funeral.  His military records should be corrected because, as a young man, he made poor decisions.  He has been a good citizen for the past 40 years.  He also states that he earned the National Defense Service Medal, Vietnam Service Medal and the Republic of Vietnam Campaign Medal.  

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 applicant's contention that his poor decisions and subsequent misconduct were due to his young age is not sufficiently mitigating to warrant relief.  The applicant was 20 years and 8 months of age when he was inducted.  He satisfactorily completed training and a tour of duty in the Republic of Vietnam.  His satisfactory performance demonstrated his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  The applicant's desire to obtain veterans medical and burial benefits is not justification for an upgrade of an individual's discharge.

6.  Based on his AWOL, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

7.  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.

8.  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)                                         AR20090004750





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ABCMR Record of Proceedings (cont)                                         AR20090004750



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