IN THE CASE OF:	  

		BOARD DATE:	  14 April 2011

		DOCKET NUMBER:  AR20100024347 


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, in effect, that his undesirable discharge be upgraded to a general or honorable discharge.  

2.  He states he tried to stay in the Army, but was told his time was up.  He was given a urine test.  He had no counsel or help back then.  He was fine until he went to Vietnam.  He would have stayed in to receive a general or honorable discharge.  In effect, he was advised by the Department of Veterans Affairs that he had Agent Orange, a general discharge, and his records were lost or burned or water damaged.  He is sending pictures of his time in Vietnam that will verify he was there if it comes to that.  

3.  He provides five pictures alleged to be of himself and one picture of Company B, 93rd Engineer Battalion, 34th Engineer Group, 20th Engineer.

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 military record shows he enlisted in the Regular Army (RA) in pay grade E-1 on 30 March 1967.  He completed basic and advanced individual training and was awarded military occupational specialty 62A (Engineer Equipment Assistant).  

3.  He served in Germany from 30 October 1967 through 5 March 1968.  He reenlisted in the RA on 29 December 1967 for 3 years.

4.  He served in Vietnam from 8 June 1968 through 7 June 1969.  He was promoted to pay grade E-4 on 11 January 1969.

5.  He was reported absent without leave (AWOL) from 19 January 1969 and dropped from the rolls of his organization on 11 June 1969.

6.  On 10 March 1970, the Commander, Casual Holding Detachment Fort Devens, MA, advised the applicant that he had been administratively determined AWOL from his units, the 34th Engineer Group Detachment, Vietnam, from 19 January 1969 until 24 September 1969; and from the Special Processing Detachment, Fort Devens, MA, from 16 to 20 October 1969, from 25 October 1969 until 10 January 1970, and from 11 January 1970 until 5 February 1970.  All available rosters maintained at those units failed to show he was present for duty at his station during the periods specified.

7.  On 10 March 1970, the applicant acknowledged receipt of the board proceedings under the provisions of Army Regulation 635-206 (Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion).

8.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his records contain a DD Form 214 which shows he was discharged from active duty in pay grade E-1 on 11 March 1970 under the provisions of Army Regulation 635-206, Administrative Proceedings.  His service was characterized as other than honorable and he was issued an Undesirable Discharge Certificate.  

9.  On 27 July 1971, he was issued DD Form 215 (Correction to DD Form 214) showing he reenlisted in the RA on 29 December 1967 and crediting him with completion of 11 months and 16 days of net active service.  He was also credited with 8 months and 13 days other service and 1 year, 7 months, and 29 days total service.  He was further credited with 11 months and 29 days of foreign service and 397 days lost time.
10.  He provided five copies of pictures alleged to be of himself, in which he described, four were taken of him in Vietnam, and one was taken of him at the Vietnam Wall.  He also provided a copy of a picture of his unit.

11.  There is no evidence he applied to the Army Discharge Review Board within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-206, then in effect, provided for the discharge of an individual by reason of desertion or AWOL.  Discharge for desertion or AWOL could be ordered only when the unauthorized absence had continued for one year or more and retention in the service was precluded by regulations or was not considered desirable or in the best interest of the U.S. Government.  When such separation was warranted an undesirable discharge was considered appropriate unless particular circumstances of the case warranted an honorable or general discharge.

13.  Army Regulation 635-200 (Enlisted Separations), then in effect, paragraph 
3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

14.  Army Regulation 635-200, paragraph 3-7a stated an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been considered; however, in view of the circumstances in this case, the applicant is not entitled to an upgrade of his undesirable discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The evidence of record shows he was advised on 10 March 1970 that he had been administratively determined AWOL from his units, 34th Engineer Group Detachment, Vietnam, from 19 January 1969 until 24 September 1969; and from Special Processing Detachment, Fort Devens, MA, from 16 to 20 October 1969, from 25 October 1969 until 10 January 1970, and from 11 January 1970 until 5 February 1970.  On 10 March 1970, he acknowledged receipt of the board proceedings under the provisions of Army Regulation 635-206 for his separation.

3.  His record is void of the facts and circumstances which led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 11 March 1970 under the provisions of Army Regulation 635-206, Administrative Proceedings.  

4.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during this period of service.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100024347





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ABCMR Record of Proceedings (cont)                                         AR20100024347



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