IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017365 


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 an upgrade of his undesirable discharge (UD).

2.  The applicant states that he was unable to adjust to military life in Vietnam.  He was on emergency leave due to family problems at home related to the health of his mother.  

3.  In support of his application, the applicant provides a copy of an Adult Psychosocial Diagnostic Assessment.  

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 military records show he was inducted into the Army of the United States in pay grade E-1 on 31 January 1968, for 2 years.  He completed training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  

3.  On 15 July 1968, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from 27 June to 6 July 1968.  His punishment included a forfeiture of $50.00 pay for 
2 months.  He did not appeal the punishment.

4.  The applicant was convicted by special court-martial of being AWOL from 17 July 1968 to 5 March 1969.  His punishment included 60 days of restriction and a forfeiture of $91.00 pay for 3 months.  The sentence was adjudged on
14 April and approved on 18 April 1969.  

5.  The applicant was promoted to pay grade E-4 on 21 July 1969.  He served in Vietnam from 8 June 1969 to 27 November 1969.

6.  The applicant was AWOL from 27 December 1969 until he returned to military control on 10 April 1970.  He was AWOL again from 6 June to 14 July 1970 and from 21 to 29 August 1970.

7.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged in pay grade E-1 on 28 October 1970, with a separation program number (SPN) of 246 (for the good of the service under the provisions of chapter 10, Army Regulation 635-200), and issued a UD Certificate.  He was credited with 1 year, 7 months, and 14 days of net active service and 408 days of lost time due to being AWOL and in confinement.

8.  On 28 October 1970, the applicant was advised that his misconduct had caused him to be discharged from the military with other than a general or honorable discharge.  He was ordered to leave the Fort Knox, Kentucky Reservation and not reenter. 

9.  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.

10.  Army Regulation 635-200 (Enlisted Separation), then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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.  A UD was normally considered appropriate for unsatisfactory conduct.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

11.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.  The applicant’s argument that he could not adjust to life in Vietnam is not supported by the evidence of record considering he was AWOL twice before he went to Vietnam.   

2.  The evidence of record shows the applicant accumulated a total of 408 days of lost time due to being AWOL and in confinement.  An absence of this duration is serious and there is insufficient evidence to show the applicant now deserves an upgrade of his discharge.  He has not provided evidence sufficient to mitigate his misconduct.  The evidence is not sufficient to upgrade his UD to a general discharge. 

3.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary, Government regularity is presumed in the discharge process.

4.  In order to justify correction of a military record, the applicant must show, 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.

5.  In view of the foregoing, 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)                                         AR20090017365



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017365



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1