IN THE CASE OF: BOARD DATE: 7 October 2008 DOCKET NUMBER: AR20080011981 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 that his undesirable discharge be upgraded to a general discharge. 2. The applicant states, in effect, that when his unit returned from Vietnam he went on leave for 30 days. He contends that his older brother was killed and that he asked for additional leave but his request was denied. He states that he had to choose between going back to Vietnam or stay at home and go to his brother’s funeral. He indicates that he was only 19 years old and that he regrets the choice he made but it was his older brother. He also points out that he served honorably in Vietnam and that his health is deteriorating because of Agent Orange and he cannot get help from the Department of Veterans Affairs (DVA). 3. The applicant provides no additional evidence in support of his application. 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 16 April 1950. He enlisted on 20 April 1967 for a period of 3 years. He successfully completed basic combat and advanced individual training in military occupational specialty 51B (carpenter). He served in Vietnam; however, his inclusive dates of service are not available. 3. Records show the applicant went absent without leave (AWOL) from 22 May 1969 to 15 February 1970. 4. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, his DD Form 214 (Report of Separation from Active Duty) shows that he was discharged with an undesirable discharge on 15 May 1970 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service [in lieu of trial by court-martial]. He had served a total of 2 years, 4 months, and 3 days of creditable active service with 269 days of lost time due to AWOL. 5. On 9 April 1976, the Army Discharge Review Board denied the applicant’s request for an honorable discharge. 6. 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. 7. 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. Age is not a sufficiently mitigating factor. Although the applicant was 17 years old when he enlisted, he successfully completed basic combat and advanced individual training. In addition, he had served over 2 years prior to going AWOL. 2. A discharge is not upgraded for the purpose of obtaining DVA benefits. 3. The applicant contended he was denied an additional leave. The maximum leave period he could have taken would have been about 30 days. He was AWOL for approximately 9 months. In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING ___XX_____ ____XX____ ___XX_____ 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. ________XXXX______________ 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) AR20080011981 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011981 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1