IN THE CASE OF:  	  

		BOARD DATE:  16 July 2015	  

		DOCKET NUMBER:  AR20150001346 


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 an upgrade of his discharge under other than honorable conditions to honorable.

2.  The applicant states:

* at the time of his early discharge, he had served, honored, and protected the United States of America to his fullest capacity for 24 months
* 12 of his 24 months were spent engaged in rigorous combat in Vietnam
* after serving in combat, he was apathetic and did not possess the will to speak of his inequitable discharge
* his discharge is inequitable and he requests an upgrade of his service characterization to honorable

3.  The applicant provides no additional evidence.

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 30 July 1968.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).

3.  His DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from on or about 18 January 1969 through 17 January 1970.

4.  On 10 September 1969, he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order to report to his track on 6 September 1969.

5.  Headquarters, 4th Squadron, 12th Cavalry Regiment, 5th Infantry Division (Mechanized), Special Court-Martial Order Number 16, dated 13 April 1970, shows he was charged with and found guilty of being absent without leave (AWOL) from his unit from 22 February 1970 through 11 March 1970.

6.  His records indicate he was again AWOL from 8 September 1970 and was subsequently dropped from the Army rolls as a deserter on 28 September 1970.  He was returned to military control on 16 February 1971.

7.  The facts and circumstances surrounding his discharge are not in his available records for review.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service on 6 May 1971.  He was assigned separation program number 246, indicating he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He was credited with 2 years, 1 month, and 29 days of net service.  Item 26a (Non-Pay Periods Time Lost) shows he had four periods of AWOL from 4 May 1970 through 10 May 1970, from 11 May 1970 through 14 June 1970, from 8 September 1970 through 16 February 1971, and from 22 February 1971 through 10 March 1971, amounting to 221 days of lost time.  His character of service was listed as under other than honorable conditions.

8.  There is no indication he petitioned the Army Discharge Review Board for a review of his discharge within that board's 15-year statute of limitations.

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

	a.  Chapter 10 of the version 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 a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, 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.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the service.

	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.

10.  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.  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 contends that his discharge under other than honorable conditions was inequitable; however, the available evidence is insufficient to support his contention.

2.  His records show he received NJP for disobeying a lawful order, was found guilty of being AWOL by a special court-martial, and was also AWOL on three additional occasions totaling 221 days of lost time, offenses punishable under the UCMJ with a punitive discharge.

3.  The complete facts and circumstances pertaining to his discharge are not available for review.  It is incumbent upon the applicant to provide a compelling argument supported by corroborating documentation to show his records are in need of correction based on an injustice or inequity.  In the absence of such evidence, administrative regularity is presumed with regard to his administrative discharge.

4.  There is no indication his discharge was not accomplished in compliance with applicable regulations without procedural errors which would have jeopardized his rights.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis for granting him an honorable or a general discharge.

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)                                         AR20150001346



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ABCMR Record of Proceedings (cont)                                         AR20150001346



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