RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 18 August 2005 DOCKET NUMBER: AR20050001896 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. Maria C. Sanchez Analyst The following members, a quorum, were present: Mr. James E. Vick Chairperson Mr. Ronald J. Weaver Member Mr. Robert Rogers 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 discharge be upgraded to an honorable discharge. 2. The applicant states, in effect, that he received copies of his discharge papers which included two DD Forms 215 (Correction to DD Form 214, Certificate of Release or Discharge From Active Duty). The applicant continues that one of the DD Forms 215 shows that his records were amended to show that he was honorably discharged. 3. The applicant continues that he does not have any recollection of being reprimanded or given an Article 15 and that the absent without leave (AWOL) dates in his records are erroneous. 4. The applicant contends that he was offered an early discharge and told that those who served in Vietnam would receive an honorable discharge. 5. The applicant concludes that the purpose of his discharge request was so that he may receive a pension to support his family. 6. The applicant provides an 11-page self-authored statement and two letters attesting to the applicant's good character. CONSIDERATION OF EVIDENCE: 1. The applicant is requesting correction of an alleged injustice which occurred on 17 March 1972, the date of his separation. The application submitted in this case is dated 9 September 2004. 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 limitations 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. The applicant enlisted in the Army on 24 November 1969 for a period of three years. After completion of basic and advanced individual training, he was awarded military occupational specialty 63B20 (Wheeled Vehicle Mechanic). On 15 April 1970, he was assigned to Company A, Signal Battalion 68 at the U.S. Army Strategic Communications Command - Europe in Frankfurt, Germany. 4. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), with an effective date 24 September 1970, shows that he was honorably discharged for the purpose of immediate reenlistment. 5. The applicant reenlisted on 25 September 1970 for a period of six years. Records show that he served in Germany during the period 12 April 1970 through 9 October 1970 and in Vietnam during the period 13 February 1971 through 12 February 1972. 6. Headquarters, U.S. Army Personnel Center, Fort Lewis, Washington Summary Court-Martial Order Number 154, dated 26 January 1971, shows that the applicant was convicted of being AWOL from his organization for the period 22 December 1970 through 23 January 1971. He was sentenced to forfeiture of $62.00 per month for one month, and reduction to the rank of Private/pay grade E-1. On 26 January 1971, the convening authority approved the sentence. 7. On 14 May 1971, nonjudicial punishment was imposed against the applicant, while being on post as a sentinel, for being found asleep upon his post. His punishment consisted of reduction to the rank of private/pay grade E-2, and forfeiture of $35.00 per month for one month. 8. Item 44 (Time Lost Under Section 972, Title 10, United States Code and Subsequent to Normal Date ETS) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was AWOL from 9 August 1971 through 17 September 1971, 1 November 1971 through 15 November 1971, and 8 February 1972 through 17 March 1972. 9. The applicant's records contain a DD Form 458 (Charge Sheet), dated 22 November 1971, which shows that charges were preferred against the applicant for AWOL for the periods 6 August 1971 through 17 September 1971 and 1 November 1971 through 16 November 1971. 10. On 13 January 1972, the applicant submitted a request for discharge for the good of the service under the provision of Army Regulation 635-200, chapter 10. The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he may be deprived of many or all Army benefits, 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 a discharge under other than honorable conditions. The applicant further indicated in his own hand that he understood the above and that no one has forced him to request a discharge. 11. The applicant's service records contain an undated Statement of AWOL which shows that he understood and waived his rights to be counseled by and to be represented by either a military or a civilian lawyer. This form also shows that the applicant knowingly, willingly, and voluntarily declared that he was AWOL for the periods 9 August 1971 through 17 September 1971 and 1 November 1971 through 16 November 1971. The applicant authenticated this form in his own hand. 12. On 14 January 1972, the applicant's commander recommended that the applicant’s request for discharge be approved and that he be furnished an undesirable discharge. 13. On 9 February 1972, the brigadier general in command of the 1st Infantry Division and Fort Riley approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate. 14. The applicant's service records contain the Undesirable Discharge Certificate, dated 17 March 1972, which contain an entry that the actual notice of discharge was not given to the applicant because he was in an AWOL status on the date of the discharge. 15. The applicant's DD Form 214 shows that he was discharged on 17 March 1972, under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service and issued an Under Other Than Honorable Conditions Discharge Certificate. He had served 2 years and 20 days of total active service and had 94 days of lost time due to AWOL. 16. The applicant's service records contain two DD Forms 215 which both are dated 4 August 1983. The DD Form 215 which corrected the applicant's DD Form 214 with an effective date of 17 March 1972 does not show amendment of the type of discharge or amendment of the reason and authority of the discharge. The DD Form 215 which corrected the applicant's DD Form 214 with an effective date of 24 September 1970 also does not show amendment of the type of discharge or amendment of the reason and authority of the discharge. 17. The applicant's service records contain a U.S. Army Reserve Personnel Command memorandum, dated 16 September 1998, which provides an accounting of the applicant's retirement points. This form states that the applicant was honorably discharged on 17 March 1972. 18. The applicant submitted two character letters which generally state that the applicant is an individual who is generous, trusted, and very willing to help others and that he is entitled to have his discharge upgraded. 19. The applicant submitted an 11-page statement which essentially states: a. that one of the DD Forms 215 shows that his discharge was upgraded to honorable; b. that he never received any disciplinary actions while in the military; c. that he only had one period of AWOL; d. that he was injured while in Vietnam; and e. he now requests that his discharge be upgraded so he may receive an pension to help support his family. 20. There is evidence in the available records that shows the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge. However, the application was not received within the ADRB's 15-year statute of limitation and he was notified that the ADRB, therefore, prohibited from considering his case. 21. 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. A undesirable discharge is normally considered appropriate. 22. 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. Whenever there is doubt, it is to be resolved in favor of the individual. 23. Army Regulation 635-200, paragraph 3-7, 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 contends that his discharge should be upgraded to an honorable discharge. 2. Evidence shows the applicant’s administrative separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights. The discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service. 3. Notwithstanding the memorandum from the U.S. Army Reserve Personnel Command which shows that the applicant was honorably discharged. Military records show that, on 12 January 1972, the applicant voluntarily requested discharge for the good of the service and indicated that he had been advised of the implications of this request. 4. Further evidence clearly shows that the applicant's chain of command recommended discharge under the provisions of chapter 10. Evidence shows that the proper discharge authority directed separation of the applicant with an undesirable discharge. 5. The applicant’s contentions have been noted; however, these factors do not provide a sufficient basis for upgrade of his discharge. Also, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veteran or other benefits. 6. After a review of the applicant’s record of service, it is evident that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, he is not entitled to an honorable discharge. 7. The period of service under consideration includes a summary court-martial, a nonjudicial punishment, 94 days of lost time and separation with an Undesirable Discharge Certificate. Therefore, this period of service is unsatisfactory and does not merit a general discharge. 8. Records show the applicant should have discovered the alleged error or injustice now under consideration on 17 March 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 16 March 1975. 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 timely file in this case. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __RJW__ __RR___ __JEV___ DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined that 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. 2. As a result, the Board further determined that there is no evidence provided which shows that it would 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. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned. ____James E. Vick__ CHAIRPERSON INDEX CASE ID AR20050001896 SUFFIX RECON DATE BOARDED 20050818 TYPE OF DISCHARGE UD DATE OF DISCHARGE 19720317 DISCHARGE AUTHORITY AR 635-200, ch 10 DISCHARGE REASON For good of the service BOARD DECISION DENY REVIEW AUTHORITY ISSUES 1. 189 110.0000 2. 3. 4. 5. 6.