IN THE CASE OF:	  

		BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090016926 


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 1971 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he was young when he joined the Army and after being assigned to various units within the United States he was assigned to Vietnam.  He states he began receiving disturbing letters from his spouse and was subsequently granted a compassionate period of leave only to discover his spouse was pregnant by another man.  The applicant states he was not mentally able to return to a combat zone.  He was absent without leave (AWOL) and he turned himself in to a police officer.  He was arrested and transported to Fort Carson, Colorado.  When offered a discharge, he took it because he did not care.  The applicant maintains that the discharge he received was not appropriate to his situation.

3.  The applicant provides an undated statement from his employer.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 12 September 1969.  He was 17 years old at the time and unmarried.

3.  Upon completion of training as a plumber, the applicant was assigned to Fort Sill, Oklahoma, in March 1970.  Between February 1970 while undergoing training at Fort Eustis and July 1970 after arriving at Fort Sill, the applicant was punished six times under Article 15 of the Uniform Code of Military Justice for multiple offenses of failing to go to his appointed place of duty and twice breaking restriction.

4.  On 1 September 1970 the applicant married and by 25 September 1970 was en route to Vietnam.  The applicant arrived in Vietnam in November 1970 and on 8 December 1970 was advanced to pay grade E-3.  In February 1971, after receiving a message from the American Red Cross indicating that his spouse thought they might be able to reconcile if he were granted leave, the applicant's command permitted the applicant to depart on 20 days of compassionate leave.

5.  On 28 February 1971, after the applicant failed to return to his unit in Vietnam, he was reported as AWOL.  He was subsequently dropped from the rolls of the Army on 30 March 1971.  On 25 August 1971, the applicant was returned to military control, although his records to not indicate if he was apprehended or returned on his own accord.

6.  A DD Form 458 (Charge Sheet), dated 30 August 1971, shows the applicant was charged with being AWOL from 28 February 1971 to 25 August 1971.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, that as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf but states in an interview associated with his separation action that he enlisted to avoid jail and was constantly in trouble after joining the Army.  He stated he initially volunteered for duty in Vietnam but his request was denied.  He stated that subsequently he got married and a month later received orders for Vietnam.  The applicant related that he was granted a compassionate leave after his wife left him and filed for divorce.  He stated he felt the Army caused his problems and he just wanted to get out.

7.  On 13 September 1971, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

8.  The applicant was discharged on 17 September 1971 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was also credited with completing 1 year, 6 months, and 11 days of total active service with nearly 180 days of lost time due to AWOL.

9.  In 1976 the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for 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 at any time after the charges have been preferred.  An under other than honorable conditions discharge is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 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.

13.  The statement submitted by the applicant from his employer is undated but noted the applicant has worked for the organization on and off for 4 years and that he is dependable and responsible with a good work ethic.
DISCUSSION AND CONCLUSIONS:

1.  The applicant's marital problems following his reassignment to Vietnam are unfortunate but not unlike other Soldiers who suffered from similar family crises and yet were able to work within the Army's structure and resources in such a way as to avoid less than honorable service.  The applicant's youth is not sufficiently mitigating to warrant the relief he now requests.

2.  In the applicant's case, his misconduct commenced long before his marriage and deployment to Vietnam and, as such, precludes an honorable discharge even without his period of AWOL.

3.  The applicant's employment since his discharge was considered.  However, good post-service conduct alone is not a basis for upgrading the characterization of one's service.

4.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.

5.  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 the aforementioned requirement.

6.  In view of the foregoing, 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)                                         AR20090016926



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ABCMR Record of Proceedings (cont)                                         AR20090016926



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