IN THE CASE OF:	

		BOARD DATE:	26 August 2009  

		DOCKET NUMBER:  AR20090005966 


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 a general, under honorable conditions discharge.

2.  The applicant states that while serving in Vietnam he was hit in the head by an exploding tire and that he was never the same after that.  He contends that all of his life he has had trouble holding a job.  He also states that he believes his service record in Vietnam was perfect.

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.  The applicant enlisted in the Regular Army (RA) on 16 February 1966 for a period of 3 years.  He completed training in military occupational specialty (MOS) 63B (wheel vehicle mechanic) and he was honorably discharged on 19 March 1967 for immediate reenlistment.  He reenlisted on 20 March 1967 for a period of 6 years.  He served in Vietnam from 17 December 1967 to 16 June 1969.    

3.  Service medical records, dated 1969, indicate the applicant sustained a projectile injury to his forehead by a truck rim in Vietnam.  Skull x-rays were normal, no fracture noted.

4.  On 17 September 1969, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 20 August 1969 to 
14 September 1969.  His punishment consisted of a reduction to private (PV1)/
E-1 and a forfeiture of pay.

5.  On 22 December 1969, in accordance with his pleas, the applicant was convicted by a special court-martial of three specifications of being AWOL (from 22 July 1969 to 23 July 1969, 20 August 1969 to 14 September 1969, and 23 September 1969 to 8 November 1969).  He was sentenced to be restricted to the limits of Fort Knox, KY for 2 months, to forfeit $100.00 pay per month for 3 months, and to be reduced to E-1.  On 24 December 1969, the convening authority approved the sentence. 

6.  On 1 April 1970, the applicant was convicted by a special court-martial of being AWOL from 19 January 1970 to 4 March 1970 and breaking restriction.  He was sentenced to be confined at hard labor for 3 months and to be reduced to   E-1.  On 3 April 1970, the convening authority approved the sentence but suspended the sentence to confinement for 3 months. 

7.  On 14 November 1970, the applicant was convicted by a special court-martial of two specifications of being AWOL (from 9 July 1970 to 19 August 1970 and 
1 October 1970 to 5 October 1970), failing to go at the prescribed time to his appointed place of duty, disobeying a lawful command, and disobeying a lawful order.  He was sentenced to be confined at hard labor for 75 days and to forfeit $100.00 pay per month for 3 months.  On 4 December 1970, the convening authority approved the sentence. 

8.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Armed Forces Report of Transfer or Discharge) shows that on 1 November 1971, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service, with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate.  He had served a total of 4 years and 3 months of creditable active service with 533 days of lost time due to AWOL and confinement.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

10.  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.

11.  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.

12.  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:

In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090005966



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ABCMR Record of Proceedings (cont)                                         AR20090005966



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