IN THE CASE OF:	  

		BOARD DATE:	  10 November 2010

		DOCKET NUMBER:  AR20100012943 


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 general discharge be upgraded to an honorable discharge.  

2.  The applicant states the following:

* His DD Form 214 (Report of Separation from Active Duty) does not show any overseas service, but he spent 1 year in South Vietnam from 1966 to 1967 while assigned to the 515th Transportation Company
* Upon returning to the U.S., he deserted the Army due to a hardship
* His mother was very ill, his father had just died, and he left to help his mother then his mother passed away
* He went to Canada then he eventually returned to the U.S. due to amnesty 

3.  The applicant provides page 3 of his DA Form 20 (Enlisted Qualification Record) 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 8 April 1966.  

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on three occasions, on 12 August 1966, 15 September 1966, and 8 December 1967, for the following offenses:

* Operating a privately owned vehicle (POV) at 65 miles per hour (MPH) on a road for which the posted speed limit was 45 MPH
* Operating a POV within the Fort Ord Complex without having the vehicle registered with the Provost Marshal as required by post regulations
* Operating a POV without having a valid driver’s license in his possession as required by post regulations
* Failing to return to his unit from authorized absence on 12 September 1966 and remaining absent without leave (AWOL) until on or about 1900 hours 14 September 1966
* Failing to report to his appointed place of duty at the time prescribed on 
7 December 1967

4.  Item 38 (Record of Assignments) on his DA Form 20 shows he was assigned to the 515th Transportation Company, Army Postal Office (APO) San Francisco 96312 (Vietnam) in October 1966 and he was reassigned to the 63rd Transportation Company APO 96325 (Vietnam) in April 1967.  His DA Form 20 shows he returned to the continental United States in October 1967 and he was assigned to Fort Benning, GA.  

5.  On 8 April 1969, the applicant was convicted by a special court-martial of being AWOL from 1 July 1968 to 17 February 1969.

6.  The applicant’s service record shows he departed his unit in an AWOL status on 6 September 1969 and was dropped from the rolls as a deserter on 8 October 1969.  Item 27 (Remarks) on his DD Form 214 shows lost time from 6 September 1969 to 9 May 1977.  



7.  On 27 September 1977, the applicant’s unit commander notified him of pending separation action under the provisions of Army Regulation 635-200, chapter 15 by reason of misconduct - AWOL/desertion.  He was advised of his rights.  The applicant’s elections of his rights are not available.  

8.  The separation authority approved the separation action under the provisions of Army Regulation 635-200, chapter 15 for misconduct – AWOL/desertion and directed the issuance of an undesirable discharge.

9.  The applicant was discharged on 27 September 1977 under the provisions of Army Regulation 635-200 for misconduct – AWOL/desertion.  He completed 2 years, 9 months, and 13 years of creditable active service.  He had 3,270 days of lost time.  

10.  On 21 February 1978, the Army Discharge Review Board upgraded the applicant’s service from undesirable to general under honorable conditions under the Department of Defense (DOD) Special Discharge Review Program (SDRP).  

11.  On 7 September 1978, the ADRB unanimously voted not to affirm the applicant’s discharge under the DOD SDRP.  

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15, in effect at the time, established policy and prescribed procedures for the elimination of enlisted personnel for misconduct by reason of AWOL or desertion.  Elimination action under the provisions of this chapter will not be taken in lieu of disciplinary action solely to spare an individual the penalties which may be imposed under the UCMJ.  An undesirable discharge was normally considered appropriate.

13.  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.

14.  The SDRP was based on a memorandum from Secretary of Defense Brown and is often referred to as the “Carter Program.”  It mandated the upgrade of individual cases in which the applicant met one of several specified criteria and when the separation was not based on a specified compelling reason to the contrary.  The ADRB had no discretion in such cases other than to decide whether recharacterization to fully honorable as opposed to a general discharge was warranted in a particular case.  Absentees who returned to military control under the program were eligible for consideration after they were processed for separation.  Individuals could have their discharges upgraded if they met any one of the following criteria: wounded in action; received a military decoration other than a service medal; successfully completed an assignment in Southeast Asia; completed alternate service; received an honorable discharge from a previous tour of military service; or completed alternate service or excused from completing alternate service in accordance with PP 4313 of 16 September 1974.  Compelling reasons to the contrary to deny discharge upgrade were desertion/AWOL in or from the combat area; discharge based on a violent act of misconduct; discharge based on cowardice or misbehavior before the enemy; or discharge based on an act or misconduct that would be subject to criminal prosecution under civil law.  

15.  Public Law 95-126 provided in pertinent part for a “Relook Program.”  All cases upgraded from under other than honorable conditions under the SDRP or the extension to PP 4313 had to be relooked and affirmed or not affirmed under uniform standards.  Two of the principal features of Public Law 95-126 were:  
(1) the addition of 180 days of continuous unauthorized absence to other reasons (e.g., conscientious objector, deserters) for discharge which act as a specific bar to eligibility for Veterans Administration (VA) benefits.  Such absence must have been the basis for discharge under other than honorable conditions and is computed without regard to expiration term of service; and (2) prospective disqualification for receipt of VA benefits for those originally qualifying as a result of upgrade by Presidential Memorandum of 19 January 1977 or the SDRP, unless an eligibility determination was made under the published uniform standards and procedures.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s statements regarding his personal family problems were acknowledged.  However, the applicant had many legitimate avenues through which to obtain assistance or relief, without committing the misconduct (AWOL/desertion) which led to his discharge.  The applicant's personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

2.  The applicant’s record of service shows he received three Article 15s and was convicted by a special court-martial for being AWOL.  

3.  The ADRB upgraded the applicant’s undesirable discharge to a general discharge under the SDRP.  The applicant’s discharge was reviewed under the Public Law 95-126 and his discharge upgrade was not affirmed.  

4.  It appears the applicant’s overall service did not meet the standards of honorable service as defined in Army Regulation 635-200.  Therefore, the character of his service is appropriate considering all the facts of the case.  There also is no apparent error, injustice, or inequity on which to base award of an honorable 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)                                         AR20100012943



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100012943



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1