BOARD DATE: 24 November 2009
DOCKET NUMBER: AR20090009413
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 his undesirable discharge (UD) be upgraded to general under honorable conditions.
2. The applicant states he could not adjust to military conditions as a kid of 17 and the thought of serving in Vietnam and killing people scared him.
3. The applicant provides no supporting documentation.
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 with parental consent on 15 August 1968, completed training, and was awarded the military occupational specialty 11B (Light Weapons Infantryman).
3. The applicant is shown to have been absent without leave (AWOL) eight times from 1 through 2 September 1968, from 10 through 11 September 1968, from 16 through 17 September 1968, from 4 through 9 January 1969, from 2 through 6 February 1969, from 21 April through 8 June 1969, from 16 June through 11 July 1969, and from 23 October 1969 through 16 April 1970.
4. Two of his periods of AWOL are shown to have ended as a result of apprehension by civil authorities.
5. In addition to the periods of AWOL, the applicant was in confinement from 10 through 30 January 1969, from 7 February through 7 April 1969, from 12 July through 26 August 1969, and from 17 April through 1 June 1970.
6. On 21 August 1969, a special court-martial found the applicant guilty of being AWOL from 21 April through 8 June 1969 and from 16 June through 11 July 1969.
7. On 18 May 1970, a special court-martial found the applicant guilty of being AWOL from 23 October 1969 through 17 April 1970.
8. He is not shown to have been awarded any personal awards or decorations and the record contains no favorable comments or counseling statements.
9. The applicant's DD Form 214 show he was discharged under conditions other than honorable in accordance with Army Regulation 635-212 (Personnel Separations - Discharge - Unfitness and Unsuitability) with a separation program number of 28B for unfitness frequent incidents of a discreditable nature with civil or military authorities. He had 7 months and 22 days of creditable service with 493 days of lost time.
10. There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.
11. Army Regulation 635-212, in effect at the time, set forth the basic authority for the elimination of enlisted personnel. Paragraph 6 of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities. When separation for unfitness was warranted, a UD was normally considered appropriate.
12. Army Regulation 635-200 (Personnel Separations - Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. 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. Paragraph 3-7c states that a discharge under conditions other than honorable may be issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.
13. Army Regulation 15185 (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. Paragraph 2-9 states 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 states he could not adjust to military conditions as a kid of 17 and the thought of serving in Vietnam and killing people scared him.
2. The applicant was on active duty for less than a month when he went AWOL the first time. He had more than twice as much lost time as creditable service.
3. The fact that he was young and scared of the possibility of having to kill or of being killed if he served in Vietnam is not a valid mitigating factor for his repeated misconduct and numerous periods of AWOL.
4. 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.
5. The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption. The applicant has failed to submit evidence that would satisfy this 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.
___________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) AR20090009413
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20090009413
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2009 | 20090005335
Application for correction of military records (with supporting documents provided, if any). The applicant requests that his undesirable discharge be upgraded to a general discharge under honorable conditions. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.
ARMY | BCMR | CY2008 | 20080008259
On 3 April 1970, the unit commander notified the applicant of initiation of separation action under the provisions of Army Regulation 635-212 by reason of unfitness, with an Undesirable Discharge. The applicant provided numerous supporting statements indicating that when he returned from the RVN he was a completely changed person. The applicant now contends that he had a mental condition (PTSD) and attempted suicide while he was AWOL all associated with his wartime experiences in the RVN.
ARMY | BCMR | CY2011 | 20110001414
On 24 June 1970, his acting commander informed him of the initiation of proceedings to discharge him under the provisions Army Regulation 635-212 for unfitness based on frequent incidents of a discreditable nature with military authorities. On 6 July 1970, the applicant received a letter of reprimand from his company commander for being in a physical condition such that he could not perform his normal duties. On 14 July 1970, the separation authority approved the applicant's discharge for...
ARMY | BCMR | CY2009 | 20090021730
The psychiatrist recommended the applicant's separation under the provisions of Army Regulation 635-212 for unsuitability. Given the circumstances in this case, the applicant's discharge was inequitable for the following reasons: * he served 4 years, 1 month, and 4 days of creditable service * he served in Vietnam for 1 year, 8 months, and 27 days * he was twice wounded and twice cited for meritorious service * he was promoted to SSG/E-6 in three short years * from 30 November 1966 to 7 May...
ARMY | BCMR | CY2009 | 20090014288
On 16 June 1970, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation and being drunk on duty. On 29 October 1970, the separation authority approved the recommendation for separation and directed that the applicant be furnished an undesirable discharge. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
ARMY | BCMR | CY2015 | 20150002851
Application for correction of military records (with supporting documents provided, if any). He completed 2 years and 4 months of creditable active service during this period and 1 year, 1 month and 23 days of prior active service. In view of all the facts and circumstances in this case, along with the evidence of record and that provided by the applicant, there is no evidence of error or injustice in his discharge.
ARMY | BCMR | CY2004 | 20040000399C070208
The applicant requests that his records be corrected to show he was not absent without leave (AWOL) for 399 days and that he served at least 19 months of overseas service. On 9 April 1969, the applicant was convicted by a special court-martial of being AWOL from on or about 6 December 1968 to on or about 15 February 1969. The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief and to excuse failure to timely file.
ARMY | BCMR | CY2004 | 20040009393C070208
On 3 February 1971, the appropriate separation authority approved the applicant’s discharge under the provisions of Army Regulation 635-212, for unfitness, and characterization of service of under conditions other than honorable. The discharge proceedings were conducted in accordance with law and regulations applicable at the time. Even though the applicant submits letters from his therapist and psychiatrist attesting to his current mental condition, his records indicate that at the time...
ARMY | BCMR | CY2002 | 2002069969C070402
The applicant requests correction of military records as stated in the application to the Board and as restated herein. Around October 1969, the applicant’s company commander initiated separation action on him under Army Regulation 635-212 for unfitness. On 6 January 1978, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgraded discharge.
ARMY | BCMR | CY2008 | 20080016347
Application for correction of military records (with supporting documents provided, if any). On 22 October 1970, the appropriate authority approved the applicant's discharge for unfitness with an undesirable, under other than honorable conditions discharge, under the provisions of Army Regulation 635-212. Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.