IN THE CASE OF:	  

		BOARD DATE:	       21 JULY 2009

		DOCKET NUMBER:  AR20090006712 


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 under other than honorable conditions be upgraded to a general discharge under honorable conditions.

2.  The applicant states he asked for leave six times to take care of his terminally ill wife.  He states she was not receiving proper medical treatment from military doctors so after not getting any assistance from his chain of command he decided to take his wife home to get proper medical care.  He states she died 
2 years later from malignant cancer.  He states he was a good Soldier who served his country in the Republic of Vietnam.

3.  The applicant provides, in support of his application, his DD Form 214 (Report of Separation from Active Duty) with an effective date of 3 September 1975 and his National Archives (NA) Form 13038 (Certification of Military Service).

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 personnel records show he enlisted in the Regular Army on 18 May 1970 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 63F (Recovery Specialist).

3.  On 2 December 1971, the applicant received an honorable discharge for his service during the period from 18 May 1970 to 2 December 1971.  He was immediately reenlisted on 3 December 1971 for a period of 3 years.

4.  The applicant was assigned in the Republic of Vietnam from 7 March 1972 to 12 August 1972.

5.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 26 April 1971 and on 23 March 1973.  His offenses included being absent from his appointed place of duty and absent without leave (AWOL) from 16 - 21 March 1973.

6.  On 31 March 1973, the applicant departed AWOL and surrendered to military authorities on 7 May 1973.  The disposition of this period of AWOL is not available for review.

7.  On 3 September 1974, the applicant departed AWOL and he was dropped from the rolls on 10 September 1974.  He was returned to military control on
3 September 1975.

8.  The applicant's separation processing package was not available for review.

9.  On 3 September 1975, the applicant was discharged under the provisions of 
Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service, and was issued an Undesirable Discharge Certificate.  He had completed 2 years, 10 months, and 6 days of creditable active service that was characterized as under other than honorable conditions.  He had 323 days of time lost.  

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.
	

11.  Army Regulation 635-200 sets forth the basic authority for the administrative 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 trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  Army Regulation 635-200 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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he requested, but was unable to obtain, leave to ensure his terminally ill wife received the proper medical treatment.  He contends he was unable to obtain assistance from his chain of command.  However, the applicant has submitted no evidence in support of his contentions.  Therefore, his contentions were not considered as mitigating factors in the determination of this case.

2.  The applicant's service in Vietnam is noted.  However, since 16 March 1973 the applicant's behavior had been unsatisfactory.  A successful tour in a combat zone does not excuse improper behavior almost 7 months after his return.



3.  Although the applicant's complete separation package was not available, in order for him to be discharged under the provisions of Chapter 10 of Army Regulation 635-200, charges would have had to have been preferred against him for an offense for which the authorized punishment includes a punitive discharge. The applicant then had to have voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an undesirable discharge.  

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the facts of the case.

5.  In view of the above, there is insufficient basis to upgrade the characterization of the applicant's discharge to under honorable conditions.

6.  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 that requirement.

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.




      _______ _   _XXX______   ___
               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)                                         AR20090006712





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090006712



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1