IN THE CASE OF:	  

		BOARD DATE:	    24 June 2010

		DOCKET NUMBER:  AR20090021569 


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 undesirable discharge to an honorable discharge.

2.  The applicant states that he served two tours of duty in the Republic of Vietnam (RVN).  After returning from the RVN he had a baby coming, so he went home.  He contends that he was young and stupid.  Instead of doing what he needed to do to get out of the Army he just did not return to his duty station.  He finally states that before going absent without leave (AWOL) he had a good service record.

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.  On 7 May 1968, the applicant enlisted in the Regular Army for 3 years.  He was 18 years and 8 months of age at the time of enlistment.  He completed his initial training and he was awarded military occupational specialty (MOS) 12A (Pioneer).  He was subsequently assigned for duty with the 1st Engineer Battalion in the RVN.

3.  On 14 December 1968, the applicant was advanced to rank/grade of specialist four (SP4)/E-4.

4.  On 16 July 1969, the applicant requested a 6-month tour extension in the RVN and reassignment to Headquarters and Headquarters Company, Vung Tau Sub-Area Command.  On 28 October 1969, he was accordingly reassigned.

5.  On 10 January 1970, the applicant was convicted by a special court-martial for being absent from his place of duty and twice missing bed check.  His sentence consisted of reduction to private (PV1)/E-1, hard labor without confinement for 1 month, and forfeiture of $50.00 pay per month for 1 month.  The sentence was suspended for 60 days.

6.  On 4 July 1970, the applicant was convicted by a special court-martial for unlawfully striking a Soldier, twice breaking restriction, being AWOL, and failing to go at the time prescribed to his appointed place of duty.  His sentence consisted of confinement at hard labor for 3 months, forfeiture of $100.00 pay per month for 3 months, and reduction to PV1/E-1.  The unexecuted portion of the sentence to confinement was suspended, effective 27 August 1970.

7.  On 27 August 1970, the applicant returned to the United States for duty at Fort Hood, TX, with a report date of 3 October 1970.

8.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 4 October 1970 to 25 February 1971.

9.  On 15 March 1971, the applicant was assigned to the 16th Engineer Battalion at Fort Hood.  He was AWOL from 5 April to 2 June 1971.

10.  On 16 July 1971, the applicant was convicted by a special court-martial for being AWOL.  His sentence consisted of confinement at hard labor for 2 1/2 months.

11.  On or about 4 September 1971, the applicant was released from confinement and reassigned for duty at Fort Campbell, KY.

12.  The applicant was AWOL again from on or about 14 September 1971 to on or about 7 August 1974.

13.  Charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 86, AWOL, during the period 14 September 1971 to 
7 August 1974.

14.  On 21 August 1974, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

15.  On 3 September 1974, the applicant's commander recommended disapproval of his request to be discharged under the provisions of Army Regulation 635-200, chapter 10.

16.  On 28 September 1974, the applicant voluntarily requested discharge for the good of the service pursuant to the provisions of Presidential Proclamation 4313, dated 16 September 1974.  He acknowledged that within 15 days of the date of receipt of his Undesirable Discharge Certificate, he was required to report to his State Director of Selective Service to arrange for performance of alternate service.  He further indicated that he understood that upon satisfactory completion of such alternate service would be issued a Clemency Discharge Certificate.  He also stated that he understood that such a certificate would not alter his eligibility for any benefits predicated upon his military service.

17.  On 28 September 1974, the applicant was discharged accordingly.  He had completed a total of 2 years, 6 months, and 22 days of creditable active service and he had accrued a total of 1,395 days of time lost due to AWOL and military/civilian confinement.

18.  On 30 June 1975, the Reconciliation Services Division Manager, Selective Service System, Washington, DC, terminated the applicant from the Reconciliation Service Program because he was uncooperative with efforts to 


place him in an approved job.  He failed to report for a scheduled interview or to respond to official correspondence.

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

20.  Presidential Proclamation 4313, issued on 16 September 1974, provided for the issuance of a clemency discharge to certain former Soldiers, who voluntarily entered into and completed an alternate public work program specifically designated for former Soldiers who received a less than honorable discharge for AWOL related incidents between August 1964 and March 1973.  Under this proclamation, eligible deserters were given the opportunity to request discharge for the good of the service with the understanding that they would receive an undesirable discharge.  Upon successful completion of the specified alternative service, the deserter was issued a clemency discharge.  The clemency discharge did not affect the individual’s underlying discharge, and did not entitle him to any VA benefits.  Rather, it restored federal and, in most instances, state civil rights which may have been denied due to the less than honorable discharge.  If a participant of the program failed to complete the period of alternative service the original undesirable characterization of service, would be retained.

21.  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.

22.  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.

DISCUSSION AND CONCLUSIONS:

1. The applicant contends that his undesirable discharge should be upgraded to an honorable discharge because he served in the RVN and he had a good service record before going AWOL.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  Based on the applicant's record of indiscipline from 10 September 1968 to
7 August 1974, it clearly does not show he had a good service record or that he met the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

4.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 19 years of age when he entered the Army.  He had satisfactorily completed training and he had attained the rank/grade of SP4/E-4 before any negative incidents were documented.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.

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, the applicant's request should be denied.

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)                                         AR20090021569



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ABCMR Record of Proceedings (cont)                                         AR20090021569



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