IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000988 


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 his undesirable discharge be upgraded to honorable. 

2.  The applicant states:

* He only had 6 months left to serve 
* His sergeant told him he was going back to Vietnam so he left (i.e. went absent without leave (AWOL))
* A head injury required 171 stitches while he was 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 on 13 February 1968 for a period of 3 years.  He successfully completed basic combat training and advanced individual training.  He was awarded military occupational specialty 51B (carpenter).  He arrived in Vietnam on 6 January 1969.
 
3.  On 2 July 1969, while in Vietnam, nonjudicial punishment was imposed against the applicant for absenting himself from his place of duty.  His punishment consisted of extra duty.

4.  On 21 September 1969, while in Vietnam, nonjudicial punishment was imposed against the applicant for two specifications of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  The applicant was transferred to the United States on 5 January 1970. 

6.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the Army Discharge Review Board (ADRB) proceedings indicate the applicant went AWOL on 22 June 1970 and returned to military control on 29 May 1974.  Charges were preferred against the applicant for the AWOL period on 5 June 1974.  On 5 June 1974, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  On 18 June 1974, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.  His ADRB proceedings also show he received nonjudicial punishment on 7 July 1969, 3 August 1969, 6 August 1969, and 17 September 1969; however, no other information is available.

7.  The discharge orders and the applicant's DD Form 214 show he was separated with an undesirable discharge on 21 June 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He served a total of 2 years, 5 months, and 2 days of creditable active service with 1,337 days of lost time.

8.  On 6 June 1984, the ADRB denied the applicant's request for an honorable discharge.

9.  On 26 June 1984, a DD Form 215 (Correction to DD Form 214) amended several items on the applicant's DD Form 214 which included showing he had 1,436 days of lost time. 

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

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.

DISCUSSION AND CONCLUSIONS:

The applicant's contentions were noted.  However, in the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20100000988





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ABCMR Record of Proceedings (cont)                                         AR20100000988



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