IN THE CASE OF:	  

		BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021041 


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 to honorable.

2.  The applicant states that after returning from the Republic of Vietnam (RVN), he was given orders to report to his home of record and await further orders.  He was home for two or three months without hearing from the Army.  He contends that he used his real name and social security number when he obtained employment because he was not hiding from the Army and believed the Army had released him.  He adds that he was young and foolish at the time and did not think that he was doing anything wrong. 

3.  The applicant provides a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 inducted into the Army on 5 February 1968.  Upon completion of initial entry training, he was awarded the military occupational specialty 36C (Lineman).  His DD Form 47 (Record of Induction) shows his home of records as Detroit, MI.

3.  He accepted nonjudicial punishment while in the RVN on the following occasions:

	a.  on 30 September 1968 for disobeying a lawful order from a noncommissioned officer;

	b.  on 6 January 1969 for failing to go at the time prescribed to his appointed place of duty;

	c.  on 24 July 1969 for disobeying a lawful order from a noncommissioned officer.

4.  Headquarters (HQ), U.S. Army Personnel Center, Oakland, CA, Special Orders 225, dated 13 August 1969 show that he returned from his overseas assignment on 31 July 1969.  These orders also show he was being reassigned to the 58th Signal Battalion, Fort Lewis, WA.

5.  The available evidence indicates that he failed to report to Fort Lewis, WA and was placed in an absent without leave (AWOL) status effective 2 September 1969.  He returned to military control on 26 April 1971.

6.  A DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) shows that he again departed AWOL on 13 May 1971 and was apprehended by civilian authorities and returned to military control on 
28 December 1972.

7.  On 10 January 1973, his commander initiated action to discharge him from the service under the provisions of Army Regulation 635-206 (Personnel Separations - Discharge - Misconduct).  The commander cited as the reason for the propose separation the applicant's AWOL offenses.

8.  He consulted with counsel and was advised of the basis for the contemplated separation, its effect, and the right available to him.  He waived consideration of his case by a board of officers, representation by counsel, and elected not to submit a statement in his own behalf.  

9.  On 18 January 1973, the appropriate authority approved the separation action and directed he be issued an Undesirable Discharge Certificate.  On 30 January 1973, he was discharged with his service characterized as under other than honorable conditions.  At the time of his discharge, he had completed 1 year, 
7 months, and 21 days of creditable active military service and accrued 1,205 days of time lost.

10.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 29 March 1985.

11.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel for misconduct (fraudulent entry, conviction by civil court, and absence without leave or desertion).  That regulation provided for the elimination of enlisted personnel for misconduct when they were initially convicted by civil authorities, or action was taken against them which was tantamount to a finding of guilty, for an offense for which the maximum penalty under the Uniform Code of Military Justice was death or confinement in excess of 1 year.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

13.  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's contention that his discharge should be upgraded because after returning from the RVN he was given orders to report to his home of record and await further orders has been carefully reviewed.  Evidence shows that upon his return from the RVN, he had orders to report to Fort Lewis, WA, not his home of record as he now contends.


2.  His 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 and the reasons therefore were appropriate considering all of the facts of the case.

3.  His record of indiscipline includes nonjudicial punishment on 3 occasions and 1,205 days of lost time.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an honorable or a general, under honorable conditions discharge.

4.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20100021041



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ABCMR Record of Proceedings (cont)                                         AR20100021041



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