IN THE CASE OF:	

		BOARD DATE:	  14 January 2010

		DOCKET NUMBER:  AR20090014039 


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, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge (HD).

2.  The applicant states he was drafted at age 18 and although many people his age refused to go, he did what he felt was right and went to Vietnam.  He further states that he served in Vietnam for 6 months and was reassigned back to the United States due to illness.  When he was returned to duty he did not want to go back to Vietnam.  He feels his discharge should be upgraded based on his honorable Vietnam service.

3.  The applicant provides no additional documentation 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 record shows he was inducted into the Army of the United States and entered active duty on 24 March 1971.  On 29 March 1971, 6 days after his induction and entry on active duty, he was honorably discharged for the purpose of enlistment in the Regular Army (RA).  On 30 March 1971, he enlisted in the RA for 3 years.  He was trained in and awarded military occupational specialty 55B (Ammo Storage Specialist).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he was promoted to private first class/E-3 on 6 September 1971 and this is the highest rank he attained while serving on active duty.  It also shows he served in Vietnam from 10 September 1971 through 23 March 1972.  It further shows that during his tenure on active duty, he earned the National Defense Service Medal, Vietnam Service Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  Item 44 (Time Lost under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date [Expiration Term of Service]) of the applicant's DA Form 20 shows he accrued 214 days of lost time over three separate periods of absence without leave (AWOL) between 23 June 1972 and 30 January 1973.

5.  The applicant's official military personnel file (OMPF) contains a DA Form 3835 (Notice of Unauthorized Absence from U.S. Army), dated 22 September 1972, which shows he departed AWOL on 24 July 1972, was dropped from the rolls (DFR) on 24 August 1972, and apprehended and returned to military control on 18 September 1972.

6.  The applicant's OMPF also contains a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence), dated 9 February 1973, which shows he was AWOL and subsequently DFR on 20 November 1972.  He was apprehended and returned to military control on 31 January 1973. 

7.  The applicant's record contains a DA Form 2496-1 (Disposition Form), dated 7 February 1973, which indicates the applicant stated he was AWOL because his finance records were lost and he was not being paid.  He also stated he was not allowed to go on leave and that he wanted to be out of the Army.

8.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 22 March 1973, which shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial.

9.  The applicant's DD Form 214 also shows he was discharged on 22 March 1973 and received a UD after completing a total of 1 year and 5 months of creditable active military service and accruing 213 days of time lost due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.  The separation authority can authorize a general discharge (GD) or an HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the regulation provided for the issuance of a UD.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

13.  Paragraph 3-7b of Army Regulation 635-200 provides that a GD 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 HD.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his UD should be upgraded to an HD based on his honorable service in Vietnam was carefully considered.  However, this factor is not sufficiently mitigating to support granting the requested relief.

2.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of his discharge and that confirms he accrued 213 days of lost time.  The DD Form 214 carries with it a presumption of government regularity in the discharge process.

3.  The applicant's DD Form 214 confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

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 related to his discharge.

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)                                         AR20090014039



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ABCMR Record of Proceedings (cont)                                         AR20090014039



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