IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007440 


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.

2.  The applicant states he served in Thailand during the Vietnam War.  He started to break down emotionally after the death of a fellow Soldier and he sought an early release from the military.  However, his Personnel Service Noncommissioned Officer (PSNCO) pushed for him to be reassigned instead even though he had 120 days before his release date.  Upon returning to the States, he went absent without leave (AWOL).

3.  The applicant provides no additional documentation in support of this case.

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 21 March 1972 for a 3-year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).

3.  The applicant arrived in Thailand and was assigned to the 281st Military Police Company on or about 10 October 1973.  He departed Thailand on or about 8 October 1974.

4.  The evidence of record shows that the applicant was AWOL for the period 
9 October 1974 through 18 August 1980.

5.  The applicant's court-martial charge sheet is not available and the applicant's service personnel records do not contain the facts and circumstances surrounding his separation processing.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on            18 August 1980 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of administrative discharge conduct triable by a court-martial with service characterized as "under other than honorable conditions."  The applicant completed 2 years, 7 months, and 29 days of creditable active service with 2,141 days of lost time due to AWOL.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the individual's admission of guilt.  An under other than honorable conditions discharge is normally considered appropriate.

7.  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.

8.  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.  There is no evidence and the applicant has not provided evidence to confirm his mental state at the time he went AWOL or any attempts he may have made to solicit assistance.

2.  The applicant's administrative separation is presumed to have been accomplished in accordance with applicable regulations with no indication of procedural errors that would have jeopardized his rights.

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant completed 2 years, 7 months, and 29 days of service on his
3-year enlistment.  He also had 2,141 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or a general discharge.

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)                                         AR20100007440



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100007440



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1