IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100014490 


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 he is a decorated combat veteran who served in the jungles of Vietnam for 2 years.  When he returned to the United States, he went to see his wife.  He was having marital problems and he did not return to the Army.  He attributes his misconduct to the horrors of war which he witnessed as a 19-year old, and the lack of public support and understanding for what he had been through.  He says others have had their discharges upgraded and he would like similar treatment.  He wants his children to be proud of his service.  He further states he served proudly in Vietnam and won numerous awards while serving.

3.  The applicant provides a self-authored statement and his DD Form 214 (Report of Separation from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel did not make any statements or provide any additional documents

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 was born on 31 December 1949.  He enlisted in the Regular Army on 10 January 1968 for 3 years.  Following Basic Combat Training (BCT) at Fort Polk, LA and Advanced Individual Training (AIT) at Fort Gordon, GA, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman) and reported to Fort Benning, GA for the Basic Airborne Course.  He received his Parachutist Badge and the MOS designation 11B1P denoting his qualification as an airborne infantryman.  He received "excellent" conduct and efficiency during his BCT, AIT, and airborne training.

3.  The applicant departed the United States en route to Vietnam on 5 July 1968 and he arrived in Vietnam on or about 9 August 1968.  He was subsequently assigned to Company D, 1st Battalion, 327th Infantry, 101st Airborne Division (Screaming Eagles) on 24 August 1968.  He served as a rifleman, automatic rifleman, and squad leader, and he was rapidly promoted to the rank/grade of sergeant (SGT)/E-5.

4.  The applicant departed Vietnam on 6 August 1969 en route to Fort Carson, CO.  During his 1 year in Vietnam, he participated in four campaigns phases.

5.  Evidence of records show he was awarded the Bronze Star Medal, Army Commendation Medal, Air Medal, Vietnam Service Medal with 3 bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Combat Infantryman Badge, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation while in Vietnam.  His conduct and efficiency were rated as "excellent" during his Vietnam service.

6.  Having returned to the United States, the applicant was assigned to Fort Carson where he reported for duty on or about 12 September 1969.  He was initially assigned to the 5th Adjutant General Administration Company pending final assignment.  On 22 September 1969, he departed in an absent without 


leave (AWOL) status and he remained AWOL until on or about 7 October 1969.  On his return, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).  His punishment was a forfeiture of $73.00 pay per month for 1 month.

7.  Following acceptance of NJP, the applicant was assigned to Headquarters and Headquarters Company (HHC), 2nd Battalion, 133rd Infantry.  He reported for duty on or about 14 October 1969.  However, on or about 3 December 1969, he was transferred to HHC, 3rd Battalion, 61st Infantry for duty as an infantry squad leader.

8.  On 28 December 1969, the applicant again departed AWOL.  He remained absent until on or about 2 March 1970 when he returned to military control at Fort Hood, TX.  On 17 March 1970, he was tried and convicted by a Special Court-Martial.  He was sentenced to forfeiture of $50.00 pay per month for 2 months, reduction from SGT to Corporal (CPL)/E-4), restriction for 2 months, and extra duty for 2 hours a day for 1 month.

9.  Following his court-martial, the applicant was assigned to the 3rd Battalion, 19th Artillery, 1st Armored Division at Fort Hood, with duty as a gunner.  On or about 5 April 1970, he again departed AWOL and he remained absent until on or about 16 November 1973.  Returning to Fort Hood, he was assigned to the U.S. Army Personnel Control Facility where court-martial charges were preferred against him.

10.  On 20 November 1973, the applicant consulted with counsel and he 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.  He stated that he understood the nature of the charges against him and the consequences of the undesirable discharge that he might receive.  He submitted a statement in his own behalf stating that he was a good Soldier until returning from Vietnam and facing marital problems.

11.  On 30 November 1973, the separation authority approved the applicant's request for discharge and directed the issuance of an Undesirable Discharge Certificate.  On 17 December 1973, the applicant was discharged accordingly.  He had 2 years, 1 month, and 24 days of total active service with 1,385 days of time lost due to AWOL.

12.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  On 12 January 1979, the ADRB, after carefully considering his case, voted to deny his request.
13.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 had 1 year of service in Vietnam, not 2 years as he claims.  Regardless, that period of service was characterized as "excellent" in conduct and efficiency, and the applicant received the numerous awards personal awards and unit awards while in Vietnam.

2.  However, the applicant's post-Vietnam service at Fort Carson and Fort Hood was characterized by repeated acts of indiscipline.  For his first period of AWOL, he was given NJP and a light punishment.  On his second period of AWOL, he was convicted by a special court-martial and again escaped with a minimal punishment, losing only rank (from SGT to CPL) and receiving a small fine, restriction, and extra duty.  On his final AWOL, he was absent for 3 years, 7 months, and 11 days.  This time general court-martial charges were preferred against him and he voluntarily requested and received an undesirable discharge.

3.  The applicant's frequent AWOLs were met with increasing levels of response and punishment by his chain of command, but the applicant failed to take heed and change his behavior.  In the end, he was AWOL for over 3 1/2 years and faced serious consequences.  This last incident of indiscipline far outweighed the excellent performance of duty during BCT, AIT and in Vietnam.


4.  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 therefor were appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20100014490



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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