BOARD DATE:	  3 November 2009

		DOCKET NUMBER:  AR20090010101 


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, in effect, that his undesirable discharge be upgraded to honorable or to general under honorable conditions.

2.  The applicant states that he was 16 years of age when given the option of either enlisting in the Armed Services or going to jail.  He was a scared little boy who was only 5-feet tall and straight off the farm.  So at 17 years of age, he abided by the judge's order and enlisted.  Upon enlistment, he went to Fort Polk, Louisiana, for basic combat training.  Afterwards, he went to Fort Belvoir, Virginia, for advanced individual training.  While there, he learned that his entire platoon was going to the Republic of Vietnam.  He had scarcely fought more than once or twice in school and, having seen men slaughtered on the television news, he was gripped by the fear of dying, being shot, or blown up.   He feared leaving the continental United States.  Now, as an elderly man, he realizes his error and would go back into the Armed Forces in a flash if it were possible.  Now with a few years left to live, he wants his family to see a better portrait of him.

3.  The applicant provides no additional documentation 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 15 January 1971, the applicant, at 17 years of age and with parental consent, enlisted in the Regular Army for 3 years.  He completed basic combat training (BCT) at Fort Polk, Louisiana, and was subsequently assigned to Fort Belvoir, Virginia, for advanced individual training (AIT) in military occupational specialty 62B (Engineer Equipment Maintenance).  There is no evidence of record showing that he completed AIT.

3.  On 9 July 1971, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) for 15 days.  The punishment included a forfeiture of $70.00 pay per month for 2 months and 45 days of restriction and extra duty.

4.  On 7 September 1973, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the periods from on or about 10 August 1971 to on or about 28 October 1971, from on or about 12 November 1971 to on or about 1 February 1972, and from on or about 13 June 1972 to on or about 6 August 1973.

5.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  On 12 September 1973, subsequent to receiving legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.

6.  In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 24 September 1973, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).  On 28 September 1973, the applicant was discharged accordingly.  He had completed a total of 8 months and 19 days of creditable active military service and had accrued 725 days of lost time.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

10.  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.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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 contends that his discharge should be upgraded because he was young at the time and was fearful of going to war.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  The applicant's contention that he was young and fearful of going to war is not sufficiently mitigating to warrant relief.  However, other Soldiers just as young and scared successfully served their time in Vietnam and in the Army.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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)                                         AR20090010101



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ABCMR Record of Proceedings (cont)                                         AR20090010101



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