IN THE CASE OF:	  

		BOARD DATE:	  13 August 2009

		DOCKET NUMBER:  AR20090005314 


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 general, under honorable conditions.

2.  The applicant states that his discharge has destroyed his life.  The applicant indicates that clemency is warranted in his case because it is an injustice to continue to suffer the adverse consequences of a bad discharge.  Under current standards he would not have received such a discharge.  He served in combat and received awards and decorations.  He had a previous honorable discharge and his promotions show that he was a generally good Soldier.  His record of disciplinary action shows only isolated or minor offenses.  His personal problems, including the use of drugs, psychiatric problems, and inability to adjust to state-side duty impaired his ability to serve.  He should have been given a physical disability discharge because he had mental problems.  He contends that his command did not follow the discharge regulations.  

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) and a checklist of issues that support his argument. 

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 February 1970, the applicant was inducted into the Army of the United States for 2 years.  On 16 February 1970, he enlisted in the Regular Army (RA) for 3 years.  He completed his initial training and he was awarded military occupational specialty (MOS) 67N (UH-1 Helicopter Repairman).

3.  On 20 August 1970, the applicant departed Fort Eustis, Virginia for duty in the Republic of Vietnam.

4.  On 18 September 1970, the applicant was assigned as a helicopter repairman with the 7th Squadron, 1st Air Cavalry Regiment, in the Republic of Vietnam.  

5.  On 1 May 1971, the applicant was promoted to specialist four, pay grade E-4.

6.  On 8 September 1971, he departed the overseas theater.

7.  On 18 September 1971, the applicant was assigned to the Medical Holding Company, Letterman Army General Hospital, Presidio of San Francisco, California.

8.  On 4 November 1971, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL).  The punishment included reduction to pay grade E-3 (suspended) and a forfeiture of $40.00 pay per month for 1 month.

9.  On 4 November 1971, the applicant departed the Medical Holding Company for assignment to Fort Lewis, Washington.

10.  On 2 December 1971, the applicant accepted NJP for AWOL.  The punishment included reduction to pay grade E-3 and a forfeiture of $39.00 pay per month for 1 month.

11.  On 23 March 1972, the applicant was convicted by a summary court-martial of AWOL.  His sentence consisted of reduction to pay grade E-1, forfeiture of $120.00 pay per month for 1 month, and confinement at hard labor for 20 days (suspended). 

12.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was AWOL on five separate occasions for a total of 210 days.

13.  The applicant's discharge packet is not contained in the available records.  However, his DD Form 214 for the period ending 2 November 1972 shows that he was administratively discharged on 2 November 1972, under the provisions of Army Regulation 600-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.  He had completed 2 years, 1 month, and 23 days of total creditable active service and he had 210 days of lost time due to AWOL.

14.  The applicant's records show that he was authorized the National Defense Service Medal, Vietnam Service Medal, and the Republic of Vietnam Campaign Medal.  There is no record showing that he was awarded any personal decorations.

15.  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.

16.  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.

17.  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 his discharge has destroyed his life and wants it upgraded to a general, under honorable conditions discharge.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's first period of service was terminated honorably, after only 
6 days, for the purpose of enlisting in the RA.

4.  There is no evidence showing that the applicant was awarded any personal decorations.

5.  The applicant has not provided any evidence or sufficiently convincing argument showing that he suffered from any physical or mental conditions that warranted a disability discharge.

6.  The applicant's record of good service is greatly diminished by the summary court-martial and two NJP's that he received.  Furthermore there is no evidence showing that he had any mitigating circumstances or that his numerous periods of AWOL were reasonable solutions to them.  

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

8.  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.

9.  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)                                         AR20090005314



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ABCMR Record of Proceedings (cont)                                         AR20090005314



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