IN THE CASE OF:	  

		BOARD DATE:	  29 January 2015

		DOCKET NUMBER:  AR20140008162 


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 duplicate applications, an upgrade of his general discharge to an honorable discharge.

2.  The applicant states he received a head wound, was captured, and his jaw was wired without anesthesia.

3.  The applicant provides:

* The Boston Vet Center Letter, dated 30 April 2002
* Boston Veterans Affairs (VA) Healthcare System Letter, dated 8 July 2004
* Probate and Family Court Name Change Documents 

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 28 June 1967.  He completed training as a personnel specialist.  He arrived in Vietnam on 3 April 1968.  He departed Vietnam en-route to the United States on 2 April 1969.

3.  The applicant accepted nonjudicial punishment (NJP) on three separate occasions for being absent without leave (AWOL) on the following dates:

* 23 June until 4 July 1969
* 1 October until 7 October 1969
* 29 December 1969 until 7 January 1970

4.  On 17 April 1970, the applicant was convicted by a summary court-martial of being AWOL from 30 March 1970 until 1 April 1970.

5.  On 29 August 1974, he was notified that charges were pending against him for being AWOL from 2 November 1970 until 22 August 1974.  He acknowledged receipt of the notification for discharge.  After consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

6.  On 11 September 1974, the appropriate authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate.

7.  On 24 September 1974, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years, 11 months, and 10 days of net active service this period and he had approximately 1,570 days of lost time due to AWOL.  He received an Undesirable Discharge Certificate.

8.  On 25 August 1980, the Army Discharge Review Board upgraded the applicant's discharge from undesirable to general – under honorable conditions.

9.  The applicant provides a letter from The Boston Vet Center, dated 30 April 2002.  This letter is signed by a Readjustment Counseling Therapist and it states that the applicant suffers from an extremely severe case of post-traumatic stress disorder.  He also provides a letter from his dentist, dated 8 July 2004, describing the condition of his teeth and the findings of head and neck examinations.

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

	a.  Chapter 10 states that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an undesirable discharge was normally considered appropriate at the time of the applicant’s discharge.

   b.  Paragraph 3-7a states 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.
   
DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  His supporting evidence has been considered.

2.  However, none of the documents he provided are sufficiently mitigating to warrant an upgrade of the general discharge he currently holds.  According to the applicable regulation 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.

3.  The applicant had 1,570 days of lost time due to AWOL.  He accepted NJP on three separate occasions and he was convicted by a summary court-martial.  His service cannot be characterized as fully honorable.

4.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial.  The appropriate authority directed the issuance of an undesirable discharge.  The ADRB at its own discretion upgraded his discharge from undesirable to general – under honorable conditions.  He has not shown error or injustice in the character of service he currently holds. 

5.  In view of the foregoing, his 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)                                         AR20140008162



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ABCMR Record of Proceedings (cont)                                         AR20140008162



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