IN THE CASE OF:	  

		BOARD DATE:	  21 July 2011

		DOCKET NUMBER:  AR20110000409 


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 his Under Other Than Honorable Conditions (UOTHC) Discharge be upgraded to a General Discharge (GD).

2.  The applicant states, in effect, he was young and ignorant at the time he served.  He was discharged due to his absent without leave (AWOL) history.  He wanted an assignment to Vietnam because all of his brothers were there.  

3.  He contends he was informed he would have a chance to go to Vietnam; however, he became very angry when he saw his brothers and friends coming home in coffins.  His last request before he dies is to put closure to a war that he has never forgotten and to bury the failures of the past. 

4.  He provides:

* two enlistment contracts
* two separation documents
* his DA Form 20 (Enlisted Qualification Record) 
* four DA Forms 2627-1 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ))
* an extract of his military medical/dental records
* two letters from the National Personnel Records Center (NPRC)
* two character reference letters



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.  A DD Form 4 (Enlistment Contract – Armed Forces of the United States) shows he was born on 27 October 1952 and he was 18 years, 7 months, and 
16 days old at the time he enlisted in the Regular Army (RA) on 11 June 1971.  After the completion of training, he was awarded military occupational specialty 11B (Light Weapons Infantryman). 

3.  He was honorably discharged on 24 February 1972 for the purpose of immediate reenlistment.  A second DD Form 4 shows he reenlisted in the RA on 25 February 1972, for a period of 4 years and for a direct assignment to Hawaii.  

4.  His DA Form 20 shows the following:

* Item 31 (Foreign Service) – he served in Hawaii from 24 April 1972 through 14 March 1974
* Item 33 (Appointments and Reductions) – he attained the grade of private first class/E-3 on 7 February 1972
* Item 38 (Record of Assignments) – he received a mixture of “excellent," "fair," "good," and "unsatisfactory" ratings during his military career
* Item 41 (Awards and Decorations) – does not indicate any acts of valor or special recognitions
* Item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date Expiration Term of Service) – he had 216 days in an AWOL status 

5.  The applicant provided four DA Forms 2627-1 that show he was administered nonjudicial punishment (NJP) four times for going AWOL, disobeying a lawful order, and failing to go to his prescribed place of duty. 

6.  The facts and circumstances surrounding his separation action are not available for the Board’s review; however, his record contains a Tripler Army Medical Center Form 108 (Request for Mental Hygiene Consultation), dated 
22 January 1974.  This form shows the applicant was pending a Special Court-Martial with the possibility of a Bad Conduct Discharge.  He voluntarily requested discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service.

7.  This form also shows his company commander noted that the applicant had been dropped from the rolls and had the propensity to go AWOL again just to get out of the service.  He also noted that rehabilitation would be to no avail.  

8.  A DA Form 3822-1 (Report of Mental Status Evaluation) shows his behavior and thought content as normal; his mood was level and his memory was good; his thinking was clear and he was fully oriented.  He was able to distinguish right from wrong and showed no sign of mental illness.  He also had the mental capacity to understand and participate in board proceedings. 

9.  On 17 March 1974, he was discharged under the provisions of chapter 10, Army Regulation 635-200, with a "UOTHC Discharge," in the grade of 
private/E-1.  His DD Form 214 (Report of Separation from Active Duty) shows he completed 1 year, 5 months, and 17 days of net active service for this period, and 8 months and 14 days of prior active service.  He had 216 days of lost time due to AWOL. 

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  On 
4 December 1975, the ADRB advised him that after careful consideration of his military records and all other available evidence, it had determined that he had been properly discharged. 

11.  He also provided two character reference letters from the Lighthouse Baptist Church and the Office of the Mayor, Agat, Guam.  These letters attest to his honesty, positive commitment to the community, his participation in church functions, and his desire to follow the life of a Christian.  

12.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred; submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge with service characterized as UOTHC.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), paragraph 3-7b, provides that a GD 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.

DISCUSSION AND CONCLUSIONS:

1.  He alleges in his application to the Board that his discharge was attributable in part to him being young and ignorant.  The record shows that at the time he enlisted in the RA, he was over 18 years and 7 months of age.  There is no evidence that he was any less mature than other Soldiers of the same or of a younger age who served successfully and honorably completed their term of service.

2.  While the applicant's discharge packet is not available, it is presumed that his administrative separation was accomplished in compliance with applicable regulations. 

3.  His record of service includes four NJPs and 216 days of lost time.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant an upgrade of his discharge. 

4.  His post-service conduct, as well as his desire to have his discharge upgraded before he dies, was also considered; however, the ABCMR does  not normally upgrade discharges based on post-service conduct alone, nor solely for the purpose of setting aside past mistakes.

5.  In view of the foregoing, he 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)                                         AR20110000409





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000409



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1