IN THE CASE OF:	  

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090017994 


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 a general discharge.

2.  The applicant states, in effect, that he served his country in Vietnam putting his life on the line, walking through swamp water, engaging in combat, and watching men die in front of him.  He has kept all of that deep pain inside of him for many years and it still haunts him in his sleep.  He further states that when he entered the Army he was a man with a goal to serve his country and do what was right.  When he returned to Fort Bragg, North Carolina, he was doing well until he had to go on field exercises that used blanks and he began to recall his memories of Vietnam.  He decided to run away and he began drinking heavily.  He also states that every time his mother turned him in at Fort Campbell, Kentucky, he would again go absent without leave (AWOL).  He concludes by stating that he gave the Army 2 good years of his life and deserves a general discharge.

3.  The applicant provides a 2-page handwritten explanation of his application and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 14 August 1949 and enlisted in the Regular Army in Memphis, Tennessee, on 13 December 1967 for a period of 3 years.  He successfully completed his training and was transferred to Vietnam on 22 June 1968 for duty as a light weapons infantryman.  He was advanced to the pay grade of E-4 on 8 September 1968.  His records show that he was charged with being AWOL from 26 December 1968 to 29 December 1968; however, the record is silent as to any punishment imposed.

3.  He departed Vietnam on 23 June 1969 and was transferred to Fort Bragg for assignment to the 82d Airborne Division.

4.  On 16 August 1969, nonjudicial punishment was imposed against him for failure to go to his place of duty.

5.  Beginning 13 August 1969, the applicant began a series of AWOL's (10 periods), of which the longest was 151 days and the shortest was 1 day, and one period of confinement.  His last AWOL period ended on 5 May 1971 and he was placed in confinement at Fort Campbell on 6 May 1971.  He remained in confinement until 20 May 1971 when he was surrendered to civil authorities in Robertson County, Tennessee, on charges of third-degree burglary and leaving an inn without paying.  The applicant entered into a plea agreement and was convicted on 23 June 1971 of third-degree burglary and petit larceny.  He was sentenced to confinement for 11 months and 29 days for each offense and to pay the court costs for the case.

6.  On 8 February 1972, the applicant’s commander notified him that he was initiating action to discharge him before the expiration of his term of service under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct) due to his conviction by civil authorities and confinement by civil authorities.  He also cited that the applicant had approximately 382 days of lost time.

7.  After consulting with counsel, the applicant indicated that he did not intend to appeal his conviction and waived all of his rights.  He also declined the opportunity to submit a statement in his own behalf.

8.  On 2 March 1972, the appropriate authority (a major general) approved the recommendation for discharge and directed that he be furnished an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged under other than honorable conditions on 7 March 1972.  He had served 2 years, 4 months, and 10 days of total active service and had 419 days of lost time.

10.  He applied to the Army Discharge Review Board (ADRB) on 18 December 1975 for an upgrade of his discharge contending that he deserved an honorable discharge for good time served.  On 15 December 1976, the ADRB determined that his discharge was both proper and equitable after reviewing the evidence of record and voted to deny his request.

11.  The applicant again applied to the ADRB for an upgrade of his discharge under the Special Discharge Review Program and, after considering his service in Vietnam as well as the remaining facts and circumstances, the ADRB again denied his request on 6 October 1977.

12.  At the time of his application to this Board he was incarcerated by the Tennessee Department of Corrections as a felony offender and has been incarcerated since 1985.

13.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 33 of the regulation provided that members convicted by civil authorities would be processed for separation.  An undesirable discharge was normally considered appropriate.

14.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets forth the basic authority for the separation of enlisted personnel.  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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no violations or procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate considering all of the available facts of the case.

3.  The applicant's overall record of service has been considered.  However, given the seriousness of his offenses, his record of service alone is not sufficiently mitigating to warrant an upgrade of his discharge.

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)                                         AR20090017994



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ABCMR Record of Proceedings (cont)                                         AR20090017994



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