RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 February 2008 DOCKET NUMBER: AR20070013538 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. Ms. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Ms. Kathleen A. Newman Chairperson Mr. Jose A. Martinez Member Ms. Susan A. Powers Member 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. 2. The applicant states that he was an only child, overly protected and barely aware that a war was going on. He was the youngest in a group of draftees. His first duty station was where he learned of Vietnam, of the peoples’ disdain for the American Soldier, of drugs, and of the politics of the era. Being very impressionable, his priorities were altered and he wanted out. His parents encouraged him to get out by retaining civilian counsel. He was encouraged to be undesirable and ultimately signed a request for chapter 10 on the assumption that it was nonpunitive and administrative in nature. As an adult, his views are, of course, very different. He lives by the philosophy “that every circumstance has an issuing consequence.” He states that the Department of Veterans Affairs (VA) provides him with all his post-cardiac care and they are more than gracious, but on occasion the character of his discharge is questioned. He agrees that his conduct was misguided and irresponsible but certainly not criminal. 3. The applicant provides two character references and his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 6 August 1970. 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 was born on 1 March 1950. He enlisted in the Regular Army on 8 March 1968 for 3 years for training in aircraft maintenance. He completed basic combat training and advanced individual training and was awarded military occupational specialty (MOS) 67A (Aircraft Maintenance Crewman). He was assigned to Fort Carson, CO on 30 August 1968. 3. The applicant was honorably discharged on 9 December 1968. On 10 December 1968, he immediately reenlisted for 4 years with assignment to the 3d Battalion, 65th Artillery within or near Cleveland, OH (and guaranteed a minimum of 12 months in the initial area of assignment). 4. On 15 July 1969, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from on or about 3 to on or about 19 June 1969 and from on or about 23 to on or about 27 June 1969. He was sentenced to hard labor without confinement for 30 days and to forfeit $82.00 pay per month for one month. 5. On 21 November 1969, the applicant was convicted by a special court-martial of being AWOL from on or about 16 July to on or about 21 August 1969. He was sentenced to confinement at hard labor for 4 months (suspended for 6 months), to forfeit $82.00 pay per month for 4months, and to be reduced to Private, E-1. 6. On 6 February 1970, the applicant completed a psychiatric evaluation. He was diagnosed with having an inadequate personality. He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings. 7. On or about 7 July 1970, the applicant completed a separation physical and was found qualified for separation. 8. Court-martial charges were preferred against the applicant charging him with two specifications of AWOL, from on or about 7 December 1969 to on or about 6 January 1970 and from on or about 19 March to on or about 24 June 1970. 9. On 7 July 1970, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service in lieu of trial by court-martial. He stated that he was not subjected to coercion with respect to his request for discharge, and he had been advised of the implications that were attached to it. He understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He understood that, as a result of the issuance of such a discharge, he would be deprived of many or all benefits administered by the VA, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law. He submitted no statement in his own behalf. 10. On 6 August 1970, the appropriate authority approved the applicant’s request and directed he receive an Undesirable Discharge Certificate. 11. On 6 August 1970, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a characterization of service of under other than honorable conditions. He had completed a total of 1 year and 8 months of creditable active service and had 272 days of lost time. 12. Army Regulation 635-200 (Personnel Separations) 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge. 13. Army Regulation 635-200, 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. 14. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant was 18 years old when he enlisted in the Regular Army. He contended that it was at his first duty station where he learned of Vietnam, of the peoples’ disdain for the American Soldier, of drugs, and of the politics of the era. He contended that he was very impressionable, and he wanted out. However, he had been at his first duty station for four months when he opted to reenlist. It is not credible to believe that he did not know about Vietnam, of the peoples’ disdain for the American Soldier, of drugs, or of the politics of the era at the time he reenlisted. 2. 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. There is no indication that the request was made under coercion or duress, and he acknowledged that it was not. 3. When the applicant requested discharge, he also acknowledged that he understood that, as a result of the issuance of an undesirable discharge, he would be deprived of many or all benefits administered by the VA. Therefore, he should not be surprised if “on occasion the character of his discharge is questioned.” 4. The applicant contended that his conduct was misguided and irresponsible but certainly not criminal. To the contrary, his conduct was an offense for which he could have been convicted by court-martial (a Federal conviction) and for which he could have received a punitive discharge. When his request for discharge in lieu of trial by court-martial was approved, he was given an administrative, nonpunitive discharge. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __kan___ __jam___ __sap___ 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. __Kathleen A. Newman__ CHAIRPERSON INDEX CASE ID AR20070013538 SUFFIX RECON DATE BOARDED 20080212 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19700806 DISCHARGE AUTHORITY AR 635-200, ch 10 DISCHARGE REASON A70.00 BOARD DECISION DENY REVIEW AUTHORITY Ms. Mitrano ISSUES 1. 110.00 2. 3. 4. 5. 6.