IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009 

		DOCKET NUMBER:  AR20090010261 


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 an upgrade of his general, under honorable conditions discharge to a fully honorable discharge.
 
2.  The applicant states that he was an extremely good Soldier while serving in the United States and the Republic of Vietnam.  He also states that he made one small mistake that was of no threat to the men in his gun squad or his country.
 
3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Discharge or Transfer) 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.  The applicant's military personnel records show that he enlisted in the Regular Army (RA) on 31 July 1969.
 
3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of nonjudicial punishment under the provision of Article 15, Uniform Code of Military Justice (UCMJ) on 22 January 1970, for without authority, absenting himself from his unit from 4 January to 10 January 1970.  His punishment included a forfeiture of $17.00 and 14 days of restriction and extra duty.

4.  A DA Form 2496 (Disposition Form), subject:  Separation Under Army Regulation 635-206 [Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion)], dated 3 March 1973, shows that the applicant was recommended for discharge from the service in accordance with Section VII (Misconduct), paragraph 45b of Army Regulation 635-206 for absenting himself without proper authority from 20 April 1971 to
13 February 1973.  The battalion commander recommended a general, under honorable conditions or an undesirable discharge.
 
5.  On 3 March 1973, the applicant, through counsel, acknowledged receipt of notification of the proposed discharge from the service for misconduct.  He waived his request to have his case considered by a board of officers and elected not to submit a statement in his own behalf.  He acknowledged that he could be issued a general, under honorable conditions discharge or a discharge under conditions other than honorable and the effects of the issuance of either discharge.
 
6.  On 21 March 1973, the separation authority approved the applicant's discharge under the provisions of Army Regulation 635-206 for an unauthorized absence that had continued for more than 1 year, with a general, under honorable conditions discharge.
 
7.  The applicant was discharged on 30 March 1973, in pay grade E-1, under the provisions of Army Regulation 635-206 for an unauthorized absence of more than 1-year.  His character of service was shown as general, under honorable conditions and he was issued a General Discharge Certificate.  He was credited with 1 year, 8 months, and 29 days of net active service with 691 days of lost time.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.
 
9.  Section VII, paragraph 45b of Army Regulation 635-206, then in effect, stated that an individual may be considered for discharge when the unauthorized absence has continued for more than 1 year.  This regulation also provides that an individual discharged by reason of desertion or AWOL under this section will normally be furnished an Undesirable Discharge Certificate except that an Honorable or a General Discharge Certificate may be furnished if the individual being discharged has been awarded a personal decoration, or if warranted by the particular circumstances in a given case.

10.  Army Regulation 635-200, then and currently in effect, 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.

DISCUSSION AND CONCLUSIONS:
 
1.  The applicant contends that his general, under honorable conditions discharge should be upgrade to a fully honorable discharge.

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

2.  The evidence of record shows that he was recommended for a general, under honorable conditions discharge by reason of an unauthorized absence of more than 1-year.  The applicant, after consulting with counsel, acknowledged that he could receive an under other than honorable conditions discharge.  He has provided no evidence to show that his discharge was unjust at the time of his offense.  He also has not provided evidence sufficient to mitigate the character of his discharge.
 
3.  The evidence of record also shows the applicant was absent without proper authority for 691 days.  Records show the applicant's command ensured that the proper documents were prepared and that his rights were fully protected during separation processing.  Separation was conducted in accordance with applicable regulatory guidelines.



4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, there is no basis for warranting the applicant's requested relief.

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)                                         AR20090010261



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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