IN THE CASE OF:	  

		BOARD DATE:	         3 November 2009

		DOCKET NUMBER:  AR20090007911 


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 be upgraded.

2.  The applicant states when he was on active duty he had mental problems that affected his behavior.  The applicant further states that it all started after he returned from Vietnam.  Before Vietnam he did not have any problems in the military.

3.  The applicant provides no additional documentation in support of this case.

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 was inducted into the Army of the United States on 2 February 1971.  He was honorably discharged on 7 February 1971 and immediately enlisted for a 3-year term of service in the Regular Army on 8 February 1971.
The applicant successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 71N (Movement Specialist).  

3.  The applicant arrived in the Republic of Vietnam on 19 June 1971 and was assigned to Headquarters and Headquarters Company, U.S. Army Support Command, Saigon. 

4.  On 25 January 1972, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) for the period 6 January 1972 through 22 January 1972.

5.  The applicant departed Vietnam on 6 April 1972.  On 20 May 1972, he was assigned to Headquarters, Headquarters and Band Company, Division Support Command, 101st Airborne Division, Fort Campbell, Kentucky.  

6.  On 21 November 1972, the applicant accepted NJP under Article 15 UCMJ for failure to be at his appointed place of duty.

7.  On 2 February 1973, the applicant accepted NJP under Article 15 UCMJ for being AWOL for the period 11 December 1972 through 25 January 1973 [dropped from rolls on 8 January 1973].

8.  Evidence of record shows that the applicant was AWOL for the period 
19 March 1973 through 5 July 1973.

9.  The applicant's court-martial charge sheet is not available.

10.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged on 27 July 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of in lieu of trial by court-martial with an undesirable discharge and service characterized as under other than honorable conditions.  The applicant completed a total of 2 years and 
6 days of creditable active service of this term of service with 170 days of lost time due to being AWOL.


11.  Army Regulation 635-200 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 trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. 
At the time, an undesirable discharge was normally considered appropriate.

12.  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.

13.  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's records show that he received four Article 15s and had three instances of AWOL, including one lengthy period of AWOL.  He had completed a total of 2 years and 6 days of creditable active service with 170 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel, which are required for the issuance of an honorable or general discharge.

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

3.  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.

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)                                         AR20090007911





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ABCMR Record of Proceedings (cont)                                         AR20090007911



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