IN THE CASE OF:	  

		BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090010751 


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 that he spent time in Vietnam, that he was 18 years old, and that he did not understand the consequences of this type of discharge or what it meant to his future.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) 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 was born on 27 December 1951.  He enlisted in the Regular Army on 10 January 1969 for a period of 3 years at the age of 17.  He completed basic combat training and advanced individual training in military occupational specialty 63B (wheel vehicle mechanic).  He was honorably discharged on 11 February 1970 for immediate reenlistment.  He reenlisted on 12 February 1970 for a period of 3 years.  The applicant arrived in Vietnam on 23 April 1970.

3.  On 10 September 1970, while in Vietnam, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (by being near an off-limits area) and carrying a concealed weapon.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 27 January 1971, while in Vietnam, nonjudicial punishment was imposed against the applicant for violating a lawful general regulation (by being in or near an off-limits area).  His punishment consisted of a reduction to pay grade E-2 (suspended), a forfeiture of pay, restriction, and extra duty.

5.  On 13 March 1971, while in Vietnam, nonjudicial punishment was imposed against the applicant for violating two lawful general regulations (by being in an off-limits area and for a curfew violation).  His punishment consisted of a reduction to pay grade E-2, restriction, and extra duty.

6.  The applicant transferred to the United States on 8 July 1971.

7.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the applicant's DD Form 214 shows he was discharged with a character of service of under other than honorable conditions and issued an Undesirable Discharge Certificate on 8 July 1971 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service.  He had served a total of 2 years, 5 months, and 29 days of creditable active service.

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

9.  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.  At the time, an undesirable discharge was normally considered appropriate.

10.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed basic combat training and advanced individual training.  In addition, he completed 20 months of service prior to his first nonjudicial punishment.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090010751



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ABCMR Record of Proceedings (cont)                                         AR20090010751



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