IN THE CASE OF:	  

		BOARD DATE:	    11 May 2010

		DOCKET NUMBER:  AR20090018537 


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 upgrade of his under other than honorable conditions discharge to an honorable or a general under honorable conditions discharge. 

2.  The applicant states his health concerns and readjustment from his combat tour in Vietnam were not addressed upon his return to the U.S. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three letters of reference.

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 enlisted in the Regular Army on 25 October 1966.  He was awarded military occupational specialty 51N (water supply specialist).  The highest rank/grade he held was specialist (SPC)/E-4.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  The applicant served in Vietnam from 11 April 1967 to 6 April 1968 as a firefighter and water supply specialist.

4.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions during the period 27 July 1968 to 23 November 1968 for twice being absent without leave (AWOL) and for willfully disobeying a lawful order.

5.  In August 1969, the applicant was charged with being AWOL from 6 December 1968 to on or about 18 August 1969.

6.  While the applicant's discharge packet is not available, a PCRE-RD-A memorandum, subject: Discharge in Absentia, dated 28 June 1990, indicates the applicant was processed for discharge (in absentia) due to the expiration of the statute of limitations for charging him with desertion.  The memorandum further states that the applicant had a history of AWOL and his last return to military control was on 24 April 1980 at Fort Hamilton, NY.  He was released to the AWOL Apprehension Team, Fort Hamilton for transport to Fort Dix, NJ.  However, when queried in June 1980, the Personnel Control Facility at Fort Dix, NJ had no record of the applicant's arrival.  It also states that on 25 September 1989, a letter of notification of discharge eligibility was sent to the applicant to inform him of the Army's determination of his desertion status, the intent to discharge him under other than honorable conditions, and to give him an opportunity to provide a statement in his own behalf.  No reply was received.

7.  The applicant's DD Form 214 shows that on 28 June 1990 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for misconduct - serious offense - desertion.  His DD Form 214 shows he completed 2 years and 1 month of active military service.  Item 18 (Remarks) contains the entry: "time lost 7,884 days.  DD Form 214 administratively issued 28 June 1990."  It also contains the following continuation entries from item 29 (Dates of Time Lost during This Period): "item 29.  670404-670406; 680629-680719; 680722-680725; 681205-690818; 690819-800819; 800501-900628."


8.  The applicant provides three reference letters.

* His sister writes about his demeanor when he returned home from Vietnam; that he was not the same person.  He was very nervous and jittery and he did not want to participate in any group or family events and would not discuss his experiences in Vietnam.  However, although it took a long time for him to get over the trauma, all were proud of him and his efforts in becoming a valued family member again.

* His niece writes her uncle is determined to be a better man and he is the most supportive uncle in her life.  She has been a public school educator for more than 10 years and she appreciated having her uncle around to gain helpful insight on life.  He is a loving and kind human being who lights up a room when he enters.  He is a hard worker and sincerely tries to be a man who is able to stand proudly on his own two feet.

* His renter, an acquaintance for over 40 years, is a very good tenant and pays his rent on time.

9.   Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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

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, 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.

13.  Army Regulation 15-185 (ABCMR) 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.  Records show that the applicant accepted nonjudicial punishment on two occasions for twice being AWOL and for disobeying a lawful order prior to the Army's determination of his desertion status.

2.  The applicant's records show he was charged with the commission of a serious offense.  His records show he had 7,884 days of lost time.  Even though his records do not contain his discharge packet, based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general under honorable conditions or an honorable discharge.

3.  The applicant's character of service is based on the offense for which he was discharged.  He has not provided any evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

4.  The applicant states his health concerns and readjustment from his combat tour in Vietnam were not addressed upon his return to the United States.  The applicant's misconduct did not just start after his return from Vietnam.  His 
DD Form 214 indicates he had 3 days of AWOL before he arrived in Vietnam and a 3-week AWOL just 2 months after he arrived in Vietnam.

5.  The applicant's good post-service conduct was carefully considered along with the reference letters he provided.  However, they were not sufficiently mitigating or meritorious to warrant upgrading a properly issued discharge.

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)                                         AR20090018537



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ABCMR Record of Proceedings (cont)                                         AR20090018537



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