IN THE CASE OF:	  

		BOARD DATE:	  31 November 2010

		DOCKET NUMBER:  AR20100015371 


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, through his Member of Congress, an upgrade of his undesirable discharge.

2.  The applicant states he completed a tour in Vietnam, attained the rank/grade of sergeant (SGT), and received multiple valor awards or medals.  He was a good Soldier until he came back home and could not adjust.  He went to the Department of Veterans Affairs (VA) for help and underwent some therapy. 

3.  The applicant provides a copy of his DD Form 214 (Report of Separation form Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests the applicant's discharge be upgraded.

2.  Counsel states the applicant previously requested an upgrade of his discharge but never received a response to his request.  Counsel adds the applicant is a decorated veteran with multiple valor awards and badges.  

3.  Counsel provides:

* two letters from Disabled American Veterans
* letter from the Army Discharge Review Board (ADRB)


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's records show he was inducted into the Army of the United States on 6 September 1967 and held military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was SGT/E-5.

3.  His records show he served in Vietnam from on or about 28 February 1968 to on or about 24 February 1969.  He was awarded the National Defense Service Medal, Combat Infantryman Badge, Republic of Vietnam Campaign Medal with Device (1960), Purple Heart, 2 overseas service bars, Air Medal, Bronze Star Medal, and Vietnam Service Medal.

4.  On 14 July 1969, he was convicted by a special court-martial of one specification of being absent without leave (AWOL) from 30 April 1969 to 28 June 1969.  The court sentenced him to a reduction to private/E-2.  The convening authority approved a lesser sentence of reduction to specialist/E-4 on 11 August 1969.

5.  On 27 August 1969, he departed his unit in an AWOL status and, on            25 September 1969, he was dropped from the Army rolls.  He was apprehended by Federal authorities on 9 March 1976 in Denver, CO, and returned to military control on 11 March 1976.

6.  On 17 March 1976, the applicant's immediate commander notified him of his intent to initiate separation action against him under the provisions of paragraph 15-6 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) by reason of misconduct - desertion (AWOL for one year or more).  The immediate commander recommended an under other than honorable conditions character of service.
7.  On 17 March 1976, he acknowledged receipt of the notification of his pending separation action.  He was advised by counsel of the basis for the contemplated action to separate him for misconduct under the provisions of chapter 15 of Army Regulation 635-200.  He waived consideration of his case by a board of officers, personal appearance before a board of officers, representation by counsel, and elected to submit a statement in his own behalf.  In his statement, he admitted that he had been AWOL from his unit and that he was willing to accept an undesirable discharge under appropriate regulations. 

8.  He further indicated he understood he might expect to encounter substantial prejudice in civilian life if a general discharge under honorable conditions were issued to him and that in the event of the issuance of an undesirable discharge under other than honorable conditions, he might be ineligible for many or all benefits as a veteran under both Federal and State laws, and he might encounter substantial prejudice in civilian life.

9.  On 18 March 1976, his immediate commander initiated separation action against him under the provisions of chapter 15 of Army Regulation 635-200.  Specifically, the immediate commander cited the applicant's extensive AWOL. This was followed by a recommendation of approval by his intermediate commander.

10.  On 25 March 1976, a Staff Judge Advocate reviewed the recommendation for the applicant's discharge for misconduct and found it legally sufficient.

11.  On 30 March 1976, the separation authority approved the applicant's discharge under the provisions of chapter 15 of Army Regulation 635-200 and directed he be furnished an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  The applicant was accordingly discharged on 22 April 1976.  The DD Form 214 he was issued shows he completed a total of 1 year, 11 months, and 7 days of creditable active military service with a total of 2,445 days of lost time.

12.  On 18 July 1978, subsequent to a personal hearing with his counsel in Washington, DC, the ADRB again denied his petition for an upgrade of his discharge.

13.  On 7 October 1981, subsequent to another petition for an upgrade of his discharge, he was notified that he was no longer eligible for further consideration by the ADRB; however, he was eligible to apply to the ABCMR.


14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 15-6 (dated 14 December 1973) establishes policy and prescribes procedures for separating members for misconduct by reason of absence without leave or desertion.  It stated that an individual may be considered for discharge under this section when it is determined by an administrative review that there is substantial evidence to support a determination of desertion or absence without leave, the authorized absence was continuous for 1 year or longer, retention was undesirable, or a trial by court-martial is deemed inadvisable.  Action will be taken to separate a member for misconduct when it was clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  

15.  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.

16.  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.  The applicant requests that his discharge be upgraded.

2.  The applicant's records reveal a history of misconduct which includes one instance of a court-martial and an extensive history of desertion and/or continuous AWOL.  Accordingly, his chain of command initiated separation action against him.  His separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  The reason for discharge and the characterization of service were both proper and equitable.

3.  His service in Vietnam and multiple personal decorations are noted.  However, they are not sufficient mitigating to grant him the requested relief.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  Based on his record of substandard performance and/or indiscipline, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the 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)                                         AR20100015371



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ABCMR Record of Proceedings (cont)                                         AR20100015371



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