IN THE CASE OF:	  

		BOARD DATE:	        23 July 2009

		DOCKET NUMBER:  AR20090007153 


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 general discharge be upgraded to an honorable discharge.

2.  The applicant states that he served his country honorably during a time of war.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 in pay grade E-1 on 23 July 1969. He completed basic and advanced individual training and was awarded military occupational specialty 63B, wheel vehicle mechanic.  He served in Vietnam from 15 December 1969 to 14 December 1970.  He was promoted to pay grade E-4 on 9 March 1970.  This was the highest grade that he held.

3.  The applicant was convicted by special court-martial of one specification of absenting himself from his unit from 28 December 1970 to 2 June 1971.  He was sentenced to confinement at hard labor for 4 months and a forfeiture of $50.00 pay per months for 4 months.  The sentence was adjudged on 25 June 1971 and approved on 28 June 1971.

4.  The applicant's records show he was reduced to pay grade E-1 on 28 June 1971.  He was again promoted to pay grade E-3 on 21 July 1971.

5.  The applicant was reported absent without leave (AWOL) on 10 January 1972 and dropped from the rolls of his organization on 8 February 1972.

6.  In a commander's letter of inquiry (into the applicant's absence), dated 21 February 1972, the applicant's company commander stated that the applicant had not received any letter of indebtedness nor did he have any problems with his superiors.  The applicant did not associate with many of the members of the battery; therefore, he did not have too many close friends.  The company commander also stated that there was no evidence or indication of suspected foul play or mental instability which could have caused the AWOL.  No record of any evidence of intent not to return was found.

7.  On 18 May 1972, a DD Form 458 (Charge Sheet) was prepared by the Commander, Personnel Control Facility, Headquarters Command, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma.  The applicant was charged with one specification of being AWOL from 10 January 1972 to 15 May 1972.

8.  On 25 May 1972, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected to submit a statement in his own behalf.
9.  In his statement, the applicant stated that he came into the Army because he did not want to wait to get drafted and he was sent to Vietnam.  He returned home on leave and got married.  He also went AWOL for 5 months for which he received a special court-martial.  He went AWOL while stationed at Fort Sill because the finance company kept messing up his pay every month.  Because of that he lost his new car that he had brought with the money he saved in Vietnam. Also, his wife was going to have a baby and she was living with her parents, who in addition to his wife had nine children in their family.  His father was 72 years old and he did not have enough money for his wife to stay with them, so he thought he would be better off at home where he was needed.  He also stated that he never received an Article 15 since he had been in the Army.  It seemed like his financial problems would be over after joining the Army, but they seemed to have gotten worse.  He thought that for the good of the Army, he should be discharged.

10.  On 26 May 1972, the applicant's company commander recommended approval of the applicant's request and recommended the issuance of an undesirable discharge.

11.  On 9 June 1972, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Undesirable Discharge Certificate be issued and that he be reduced to pay grade E-1.

12.  The applicant was discharged on 9 June 1972 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable and issued an Undesirable Discharge Certificate.  He was credited with 1 year, 10 months, and 6 days of net active service and 377 days of lost time due to confinement and AWOL.

13.  On 11 April 1979, the Army Discharge Review Board (ADRB) determined that the applicant had successfully completed a tour of duty in the Republic of Vietnam during the period December 1969 to November 1970 and received the Army Commendation Medal.  The board noted that the applicant's major acts of indiscipline began to occur after his return from Vietnam as evidenced by one special court-martial for a period of AWOL from December 1970 to June 1971.  Based on the foregoing, partial relief was considered appropriate and a fully honorable discharge, noting the applicant's disciplinary record and lost time, could not be justified.  Accordingly, the ADRB voted to grant partial relief in the form of an upgrade of the applicant's characterization of service to general under honorable conditions.  This upgrade also included the restoration of his rank and pay grade of private first class/E-3.

14.  The applicant was reissued a DD Form 214 changing his character of service to general under honorable conditions and restoring his former pay grade of E-3.

15.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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.  An undesirable discharge was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

16.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 or is otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his general discharge to an honorable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that he served his country honorably during a time of war has been noted.  The applicant served without incident from his enlistment in July 1969 through his period of service in Vietnam (15 December 1969 to 14 December 1970).  However, upon his return to the United States, he departed AWOL on 28 December 1970.  On 23 June 1971, he was convicted by a special court-martial of AWOL from 28 December 1970 to 9 June 1971 and placed in confinement.  He again departed AWOL on 10 January 1972 and in May 1972, upon his returned to military control, he requested discharge for the good of the service in lieu of court-martial.  He acknowledged that he could be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  His request was approved and he was discharged on 9 June 1972 under conditions other than honorable, issued an Undesirable Discharge Certificate, and reduced to pay grade E-1.

3.  In April 1979, the ADRB, after taking into consideration the applicant's successful completion of his tour of duty in Vietnam and receipt of the Army Commendation Medal, upgraded his discharge to general under honorable conditions with restoration of his pay grade to E-3.  The ADRB noted that the applicant's disciplinary record and lost time could not justify an upgrade to a fully honorable discharge.

4.  The applicant has provided no evidence or a convincing argument with this request to show his discharge should be upgraded to a fully honorable discharge. His military records also contain no evidence which would entitle him to a further upgrade of his discharge to honorable.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge then and now.

5.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

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)                                         AR20090007153



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090007153



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1