IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090013931 


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 to honorable.

2.  The applicant states that he was a very young American Soldier and only wanted to be released from the military.  He indicates that he served his country very well for 2 and 1/2 years, that he had a drug problem at the end of his tour in Vietnam, and that he was under stress from an extended period of combat.  He claims that he made a mistake but he feels the punishment of a less than honorable discharge is too severe.  He states that he has been a good citizen since his discharge and that his record speaks for itself.  He points out that he received the Vietnam Service Medal with two bronze service stars.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) and three character reference letters 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 16 September 1952.  He enlisted in the Regular Army on 12 March 1970 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 36K (field wireman).  He served in Vietnam from 24 February 1971 to 13 March 1972.  His DA Form 20 (Enlisted Qualification Record) shows lost time for the period 14 March 1972 to 2 April 1972 while the applicant was in an inpatient status.    

3.  On 22 June 1972, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 15 May 1972 to 21 June 1972.  His punishment consisted of a reduction to E-3 and a forfeiture of pay.

4.  The applicant went AWOL on 25 July 1972 and returned to military control on 1 October 1972.  He went AWOL on 18 October 1972 and returned to military control on 15 November 1972.  He went AWOL again on 20 November 1972 and returned to military control on 21 June 1973.  On 21 June 1973, charges were preferred against the applicant for the AWOL periods.  

5.  On 2 July 1973, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected to submit a statement in his own behalf.  In summary, he stated that he could not stand the Army, that it was a worthless outfit, and that it taught him a lot of bad habits (drugs and drinking).  He also indicated that he was willing to take the undesirable discharge and be happy with it. 
 
6.  On 1 August 1973, the separation authority approved the applicant’s request for discharge and directed that he be furnished an undesirable discharge. 

7.  The applicant was discharged with an undesirable discharge on 24 August 1973 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 2 years, 5 months, and 11 days of creditable active service with 367 days of lost time.  His DD Form 214 (Report of Transfer or Discharge) shows, among other awards, the Vietnam Service Medal with two bronze service stars. 

8.  In support of his claim, the applicant provided three character reference letters from an employer, a fellow Soldier, and a friend.  They attest that the applicant was a good worker, that he has tried to be a productive person, that he is honest and respectful, and that he needs help and deserves an honorable discharge. 

9.  On 15 June 1982, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

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.  At the time, an undesirable discharge was 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.  Age is not a sufficiently mitigating factor.  The applicant was 19 years old when he enlisted and he successfully completed his training.  In addition, he served over 2 years of service prior to his nonjudicial punishment.   

2.  Good post service conduct alone is normally not a basis for upgrading a discharge.

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant’s record of service included one nonjudicial punishment and 367 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

5.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090013931





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ABCMR Record of Proceedings (cont)                                         AR20090013931



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