IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100000711 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he went absent without leave (AWOL) while stationed at Fort Leonard Wood, MO.  He made this mistake when he was 23 years old, and regrets the action and would like the Board to consider an upgrade due to his combat service in Vietnam. 

3.  The applicant provides no documentary evidence 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.  The applicant enlisted in the Regular Army (RA) for a period of 2 years on    27 October 1970.  He was 20 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest grade the applicant attained was specialist/pay grade E-4.

3.  On 3 May 1971, the applicant was convicted by a special court-martial for one specification of AWOL from 6 March 1971 to 4 April 1971.  The sentence consisted of reduction to private/pay grade E-1, forfeiture of $40.00 pay for         2 months, and confinement at hard labor for 14 days.

4.  On 26 July 1971, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for assault.  The punishment consisted of forfeiture of $20.00 pay for 1 month, restriction for 5 days, and extra duty for 5 days.

5.  On 10 March 1972, the applicant received NJP under Article 15, UCMJ, for AWOL from 7 February 1972 to 21 February 1972.  The punishment consisted of reduction to private first class/pay grade E-3 and a forfeiture of $25.00 pay for      1 month.

6.  The applicant served a tour in Vietnam from 6 September 1971 to 16 April 1972 consisting of 7 months and 11 days.  The record also shows the applicant was placed in a drug rehabilitation program while in Vietnam and he was medically evacuated from Vietnam for further treatment for his drug problem. 

7.  On 19 July 1972, the applicant received another NJP under Article 15, UCMJ for AWOL from 21 April 1972 to 28 June 1972.  The punishment consisted of reduction to private/pay grade E-1, forfeiture of $184.00 pay for 2 months, restriction for 30 days, and extra duty for 30 days.

8.  On 15 November 1972, the applicant was convicted by a special court-martial for one specification of AWOL from 21 August 1972 to 17 October 1972.  The sentence consisted of forfeiture of $75.00 pay for 4 months and confinement at hard labor for 3 months.

9.  On 29 August 1973, charges were preferred against the applicant for AWOL from 12 February 1973 to 22 August 1973.

10.  The applicant’s separation packet is not available.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with an under other than honorable conditions discharge on 21 September 1973.  The DD Form 214 shows the applicant held the rank of private/pay grade E-1 on the date of discharge and that he completed 1 year, 8 months, and 19 days of active military service.  The DD Form 214 also shows that the applicant had 158 days of lost time under Title 10, U.S. Code, section 972 from 3 May 1971 to 13 May 1971,    7 February 1972 to 27 June 1972, 21 August 1972 to 16 October 1972, and      19 October 1972 to 26 October 1972.  The applicant also had 273 days of lost time subsequent to normal expiration term of service from 27 October 1972 to     16 January 1973 and 12 February 1973 to 21 August 1973.  

11.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade on his discharge within that board's 15-year statute of limitations.  On     2 July 1981, ADRB denied the applicant’s request for an upgrade of his discharge.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for AWOL over 30 days.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 

    a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the service.

    b.  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

14.  Army Regulation 15-185, ABCMR, prescribes the policies for correction of military records by the Secretary of the Army, acting through the ABCMR.  This 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.  The applicant’s request for an upgrade of his discharge was carefully considered.  Although the specific facts and circumstances surrounding the applicant’s discharge processing are not available, the evidence does include a DD Form 214 that identifies that the applicant was discharged in accordance with Army Regulation 635-200, chapter 10 and there is a presumption of government regularity attached to this document.

2.  The applicant was 20 years of age when he enlisted in the U.S. Army.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  

3.  The applicant contends his discharge should be upgraded due to him serving in Vietnam.  The applicant completed his training and was assigned to Vietnam where he failed to complete this tour due to his involvement with drugs.  He was placed in a drug rehabilitation program and then medically evacuated to the Medical Holding Company at Fort Leonard Wood, MO for further treatment.  Upon his return, he committed a series of AWOLs which resulted in one Article 15 and one Special Court-Martial and eventually his request for a discharge for the good of the service.  Therefore, considering all the facts of the case, the type of discharge was proper and the characterization of service was equitable.

4.  In order to justify correction of 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.  Therefore, in view of all of the above, there is no basis for granting the applicant’s 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)                                         AR20100000711



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)