RECORD OF PROCEEDINGS

	IN THE CASE OF:  

	BOARD DATE:           20 November 2003                   
	DOCKET NUMBER:   AR2003090233

	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Wanda L. Waller		Analyst	

  The following members, a quorum, were present:

	Ms. Joann Langston		Chairperson	
	Ms. Linda D. Simmons		Member	
	Mr. Robert Duecaster		Member	

	The applicant and counsel if any, did not appear before the Board.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).

THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:  

1.  The applicant requests that his undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he served in combat in Vietnam and earned the Combat Infantryman Badge.  He contends that in April 1971 when he was about to be sent on a mission with a young inexperienced squad in Vietnam he was the sole support for his critically ill mother.  He states that his decision to sign his discharge papers, at his young age, seemed to be his only choice.  He also contends that he signed the discharge papers impulsively not really realizing the consequences and ramifications, that he did not realize his unit would be returning to the United States by August 1971, and that he deeply regrets signing his discharge papers.   

3.  The applicant provides 14 character reference letters from soldiers he served with in Vietnam.

CONSIDERATION OF EVIDENCE: 

1.  The applicant is requesting correction of an injustice which occurred on 
8 October 1971.  The application submitted in this case is dated 15 April 2003.  

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  At age 17, the applicant enlisted on 31 January 1969 for a period of 3 years.  He successfully completed basic combat training, advanced individual training, basic airborne training and was transferred to Fort Bragg, North Carolina, in military occupational specialty 11B (light weapons infantryman).  

4.  On 30 June 1970, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) from 15 June 1970 through 29 June 1970.  His punishment consisted of a forfeiture of pay.  
 
5.  The applicant served as a rifleman in Vietnam from 3 July 1970 through 
10 April 1971.  

6.  The facts and circumstances surrounding the applicant's discharge are not available.  However, records indicate that the applicant returned to the United States on leave from Vietnam and went AWOL.  DA Form 751 (Telephone or Verbal Conversation Record), dated 21 September 1971, shows that the applicant went AWOL on 16 May 1971 and returned to military control on 
17 September 1971.

7.  On 20 September 1971, after consulting with counsel, the applicant submitted the request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate; that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits; that he may be ineligible for many or all Army benefits administered by the Veterans Administration; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an undesirable discharge.  The applicant elected to submit a statement in his own behalf.  However, this statement is not contained in the available records.  

8.  The applicant was discharged with an undesirable discharge on 8 October 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served 2 years, 4 months, and 4 days of total active service with 124 days of lost time. 

9.  On 21 May 1977, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade.  On 12 January 1978, the Special Discharge Review Board denied the applicant's request for a discharge upgrade. 
On 11 May 1979, the ADRB denied the applicant's request for a discharge upgrade to general.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate. 

11.  Army Regulation 635-200, paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant was almost 20 years old at the time he submitted his voluntary request for discharge and had completed over 2 and 1/2 years of service.  Age alone is not a sufficiently mitigating factor.   

2.  Evidence of record shows the applicant consulted with counsel on 
20 September 1971 before submitting his voluntary request for discharge.  He acknowledged that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate and that he understood the ramifications of the issuance of such a discharge.   

3.  The character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

4.  The applicant's record of service included one nonjudicial punishment and 124 days of lost time and for that reason his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an honorable discharge. 

5.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

6.  Accordingly, the type of discharge directed and the reasons for separation appear to be appropriate.   

7.  Records show the applicant should have discovered the error or injustice now under consideration on 8 October 1971; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 8 October 1974.  However, the applicant did not file within the 3-year statute of limitations and has 

not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to file in this case.

BOARD VOTE:

________  ________  ________  GRANT RELIEF 

________  ________  ________  GRANT FORMAL HEARING

JL_____  LDS____  RD________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The Board determined that the evidence presented and the merits of this case are insufficient to warrant the relief requested, and therefore, it would not be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  

		______________________
		        CHAIRPERSON

INDEX

CASE ID	AR2003090233	
SUFFIX		
RECON		
DATE BOARDED	20031120	
TYPE OF DISCHARGE	UD	
DATE OF DISCHARGE	19711008	
DISCHARGE AUTHORITY	AR 635-200 chapter 10  	
DISCHARGE REASON	For the good of the service	
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.0200	
2.		
3.		
4.		
5.		
6.