IN THE CASE OF:	

		BOARD DATE:	  10 December 2009

		DOCKET NUMBER:  AR20090011460 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states that he was not the person he is today after being in Vietnam.  He contends that as an 18-year old he loved his country and fought bravely for it, that his medals prove it, and that he was having trouble at home as well.

3.  The applicant provides no documentary evidence 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 30 August 1950.  He enlisted in the Regular Army (RA) on 19 August 1968 for a period of 3 years.  He successfully completed basic combat training.  While in advanced individual training (AIT), on
6 November 1968, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) for one day.  His punishment consisted of restriction and extra duty.  He completed AIT and he was awarded military occupational specialty (MOS) 63B (wheel vehicle mechanic) and later MOS 63C (general vehicle repairman).

3.  On 24 April 1969, the applicant was honorably discharged for immediate reenlistment.  He reenlisted on 25 April 1969 for another period of 3 years.  He served in Vietnam from 5 July 1969 to 4 July 1970.

4.  On 6 November 1970, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order and assault.  His punishment consisted of a forfeiture of pay and reduction to the rank/grade of specialist four (SP4)/E-4 (suspended).

5.  On 19 February 1971, in accordance with his plea, the applicant was convicted by a summary court-martial of being AWOL from 12 January 1971 to 26 January 1971.  He was sentenced to a forfeiture of $150.00 pay per month for one month and to be reduced to SP4.  On 19 February 1971, the convening authority approved the sentence. 

6.  On 21 June 1971, nonjudicial punishment was imposed against the applicant for being AWOL from 1 June 1971 to 21 June 1971.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of pay, and restriction and extra duty.

7.  On 9 August 1971, in accordance with his pleas, the applicant was convicted by a special court-martial of failing to obey a lawful order and being AWOL from 
1 July 1971 to 15 July 1971.  He was sentenced to be reduced to private (PV1)/
E-1 and to be confined at hard labor for 35 days.  On 31 August 1971, the convening authority approved the sentence.

8.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged with a character of service of under other than honorable conditions and he was issued an Undesirable Discharge Certificate on
30 November 1971 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu 
of court-martial.  He had served a total of 2 years, 10 months, and 11 days of creditable active service with 154 days of lost time due to AWOL and confinement.  His awards included the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Bronze Star Medal, and two awards of the Army Commendation Medal.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

10.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

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:

The applicant's contentions were carefully considered.  However, 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 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)                                         AR20090011460



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ABCMR Record of Proceedings (cont)                                         AR20090011460



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