IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20110000554 


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 discharge under other than honorable conditions (UOTHC) be upgraded to an honorable discharge.

2.  The applicant states that because of the stress of combat situations encountered during his two tours of duty in Vietnam and a failing marriage, the pressure became overwhelming leading to his late return from leave.  He is a Purple Heart recipient and his record had been totally honorable prior to the late return from leave.

3.  The applicant provides copies of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and his divorce decree.

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 enlisted in the Regular Army on 8 May 1967.  He completed training and was awarded military occupational specialty (MOS) 13A (Field Artillery Basic).  He later reenlisted and reclassified to MOS 63A (Mechanic).

3.  His DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service) that he completed two tours of duty in Vietnam;

	b.  item 41 (Awards and Decorations) that he was awarded or authorized the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar; and

	c.  item 44 (Time Lost) that he was absent without leave (AWOL) during the periods 10 March-21 June 1971 (104 days), 9 July-14 July 1971 (6 days), 31 July 1971-11 April 1972 (256 days), and 16 May-10 September 1972 (117 days).

4.  The applicant's discharge processing documentation is not available; however, his DD Form 214 shows he was discharged for the good of the service on 18 October 1972 under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel).  He was issued a UOTHC discharge.  He completed 4 years, 1 month, and 15 days of total active service.

5.  The applicant's records contain two DD Forms 214:

	a.  The DD Form 214 effective 7 December 1969 shows he was honorably discharged for the purpose of immediate reenlistment.  Item 24 (Decorations, Medal, Badges, Commendations, Citations, and Campaign Ribbons Awarded or Authorized) shows the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), two overseas service bars, Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).

	b.  The DD Form 214 effective 18 October 1972 was issued upon his discharge UOTHC.  Item 24 shows one bronze service star for wear on his already-awarded Vietnam Service Medal.  Item 26a (Non-Pay Periods Time Lost) shows the same incidents of AWOL as item 44 of his DA Form 20.

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

7.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for any AWOL offense of 30 days or more.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting such a request. Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC discharge was normally considered appropriate.

	b.  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.

	c.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  The applicant states his service was totally honorable prior to being overwhelmed by the stress of combat situations he encountered during two tours of duty in Vietnam and a failing marriage leading to his late return from leave.  He requests the Board consider his honorable service prior to that incident.

2.  The applicant's records show several incidents of AWOL, three of which could have resulted in a punitive discharge.

3.  The specific facts and circumstances surrounding his discharge are not available.  His DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial.

4.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.

5.  The applicant's completion of two tours of duty in Vietnam, and his pre-AWOL service are noted.  However, he had only about 1 year and 6 months of creditable service during the 2 years and 10 months that his second enlistment lasted.  There is insufficient justification to warrant an upgrade of the discharge to either fully honorable or general under honorable conditions.

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 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)                                         AR20100015867



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110000554



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1