IN THE CASE OF:	

		BOARD DATE:	 29 December 2009 

		DOCKET NUMBER:  AR20090013398 


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 under other than honorable conditions discharge to honorable.

2.  The applicant states he was a young kid who chose to serve his country when he enlisted in the military.  He adds he was uneducated and desperate to make a life for himself.

	a.  He states he served in Vietnam from 1967 to 1970 and had a hard time adjusting to "normal life."  He also states that he could not deal with the images and situations he encountered while in Vietnam.  He adds he had issues with anger and was unable to properly handle being given orders.

	b.  He states he believes the character of service of his discharge is unjust because he served his country and was not prepared for the issues he would be facing when he returned home from Vietnam.  He is unable to recall the month or day of his discharge.

3.  The applicant provides no additional 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 enlisted and entered active duty in the Regular Army (RA) for a period of 3 years on 21 August 1967.  At the time the applicant was 17 years of age.  Upon completion of training he was awarded military occupational specialty 51B (Carpenter).  The highest rank he achieved was specialist four/pay 
grade E-4.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was honorably discharged on 29 April 1968 to immediately reenlist in the RA.  At the time he had completed 8 months and 7 days of net active service.

4.  The applicant reenlisted in the RA for a period of 3 years on 30 April 1968.

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in item 31 (Foreign Service) that he was assigned overseas in Germany from 8 February 1968 through 16 July 1968 and in the Republic of Vietnam from 30 August 1968 through 22 August 1969.

6.  A DD Form 458 (Charge Sheet), dated 30 January 1970, shows the Commander, Company C, 75th Engineer Battalion (Construction), Fort George G. Meade, Maryland, preferred charges against the applicant for being absent without leave (AWOL) from 6 October 1969 to 19 January 1970.

7.  On 20 February 1970, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the document indicates that statements in his own behalf were not submitted with his request.

	a.  The applicant's separation packet shows that a captain serving in the Judge Advocate General's Corps certified with his signature he had advised the applicant of the possible effects of an under other than honorable discharge and of the procedures and rights available to him.

	b.  The immediate commander and intermediate commanders recommended approval of the applicant's request for discharge and that an Undesirable Discharge Certificate be issued.

8.  On 24 April 1970, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an Undesirable Discharge Certificate.

9.  The applicant's DD Form 214 shows he was discharged on 24 April 1970 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service and his service was characterized as under other than honorable conditions.  At the time he had completed 1 year, 8 months, and 2 days of net active service this period and he had 113 days of lost time.

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

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

12.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  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.

14.  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 his under other than honorable conditions discharge should be upgraded because he was young, he had issues with anger and was unable to properly handle being given orders, and his discharge was unjust.

2.  Considering that the applicant had demonstrated the capacity for honorable service by the completion of training, advancement to pay grade E-3 in less than 7 months of active service, completion of 8 months of honorable service prior to being discharged to reenlist in the RA, and his subsequent completion of a 
12-month tour of duty in Vietnam, his contention that he was young and unable to properly handle being given orders is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  In addition, the offense that led to his discharge far outweighs his overall record.  Thus, the applicant's discharge was just.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

4.  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 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)                                         AR20090013398



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090013398



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1