IN THE CASE OF:	

		BOARD DATE:	  26 August 2009

		DOCKET NUMBER:  AR20090006061 


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:

The applicant requests that his general, under honorable conditions discharge be upgraded to honorable.
   
2.  The applicant states that he made a mistake by being absent without leave (AWOL).  His mother was ill.  He was the sole surviving son.  He did return to the Army and was sent to the Republic of Vietnam.  He served his country and should have an honorable discharge.  He further states that he has been under a doctor's care and has had a heart attack and open heart surgery.  

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 24 July 1967, the applicant was inducted into the Army of the United States for 2 years.  He completed his initial training and was awarded military occupational specialty 12B (Construction Engineer)

3.  The applicant served in the Republic of Vietnam from 9 December 1967 to 
8 December 1968.  His personnel records do not contain any further information about this assignment.

4.  On 28 April 1969, the applicant, then a specialist four, pay grade E-4, accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for AWOL (62 days).  The punishment included reduction to pay grade E-2, and 60 days restriction.

5.  The applicant's discharge packet is missing from his military records.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was administratively discharged on  
26 February 1971, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 1 year, 10 months and 15 days of creditable active duty and had 622 days of lost time due to AWOL and confinement.

6.  The Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge under the provisions of the "DOD Special Discharge Review Program.  Effective 27 June 1977, the ADRB upgraded his discharge to general, under honorable conditions.  The applicant was issued a DD Form 214 (Report of Separation from Active Duty) showing his characterization as under honorable conditions.  

7.  In March 1987, the applicant requested an upgrade of his general discharge to honorable.  The ADRB considered his military records and determined that the applicant's discharge was proper and equitable.  The ADRB denied the applicant's request.

8.  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.


9.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his service entitles him to an honorable 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 available records do not contain any evidence of the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.  

4.  The applicant's discharge was upgraded to general in 1977.  His subsequent request for an upgrade to honorable was denied in 1987 by the ADRB.  He has not provided any evidence or convincing argument to overcome the ADRB's decision.

5.  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.

6.  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)                                         AR20090006061





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ABCMR Record of Proceedings (cont)                                         AR20090006061



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