IN THE CASE OF: BOARD DATE: 19 August 2008 DOCKET NUMBER: AR20080008966 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 an honorable or general discharge (GD), under honorable conditions; a change in his narrative reason for discharge to "Convenience of the Government" with a corresponding Separation Designator Code (SPD) change; and a change in his Reentry (RE) code to RE-1. 2. The applicant states, in effect, that his misconduct (absence without leave) was due to the effects of the trauma he experience in the Republic of Vietnam (RVN). When he returned from the RVN, he experienced flashbacks and had nightmares, and he began to use alcohol to numb the memories of death and destruction. After the war he returned to the reservation, and it seemed that no one was interested in what he had been through. Although he was Native American (Hopi), he was not given a cleansing ceremony, which is why he continued to experience nightmares and flashbacks. He became violent, and drank for a number of years. He has been sober for 20 years, is married to the same woman, and has worked in home health care taking care of the elderly. He provides for his family and extended family; participates in Hopi religious ceremonies and contributes to his community. He regrets his actions and he is sincerely sorry for his grave mistakes. 3. The applicant provided copies of his assignment orders, promotion orders; a copy of his initial Honorable Discharge Certificate; and a copy of his U.S. Army Ordnance Center and School Diploma. 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. On 28 March 1968, the applicant was inducted into the Army of the United States. On 4 April 1968, the applicant was honorably discharged for the purpose of immediate reenlistment. On 5 April 1968, he enlisted in the Regular Army for a period of 3 years. He was trained in, awarded, and served in military occupational specialty (MOS) 13B (Field Artillery Crewman). 3. The applicant served in the RVN from 8 November 1968 through 7 November 1969. He performed duties as a turret artillery mechanic and cannoneer with A Battery, 2nd Battalion, 35th Artillery. 4. On 11 May 1970, a special court-martial convicted the applicant of being AWOL from 8 December 1969 through 30 March 1970. The resultant sentence included a forfeiture of $75.00 pay per month for 3 months and a reduction to private/E-1. 5. On 17 March 1971, a special court-martial convicted the applicant of being AWOL from 1 June – 3 November 1970, and 1 December 1970 through 5 February 1971. The resultant sentence included confinement at hard labor for 6 months (suspended for 6 months) and a forfeiture of $50.00 pay per month for 6 months. 6. The applicant's record shows that he had another period of being AWOL from 25 March – 25 December 1971. 7. The specific facts and circumstances leading to the applicant's discharge are not contained in the official records. His DD Form 214 shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of for the good of the service – in lieu of trial by court-martial. His service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate. He completed 2 years, 1 month, and 5 days of active duty service and had 616 days of lost time due to AWOL. 8. 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 submit a request for a discharge for the good of the service in lieu of trial by court-martial. The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. 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. 9. Army Regulation 601-210 (Regular Army and Army Reserve Enlistment Program) covers eligibility criteria, policies and procedures for enlistment and processing into the Regular Army and the U.S. Army Reserve. Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment. That chapter includes a list of armed forces RE codes, including Regular Army RE codes. RE-1 and 2 permit immediate reenlistment if all other criteria are met. An RE code of RE-3 was entered when a Soldier's record indicated that he or she was ineligible for or otherwise been denied immediate reenlistment; had signed a Declination of Continued Service Statement (DCSS); had met his or her retention control point (established in Army Regulation 608-280); or confinement; or had an Immediate Reenlistment Prohibition Code. An RE code of RE-3B was entered for Soldiers who had lost time during their last period of service. 10. Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214. At the time the applicant was discharge, "Separation Program Number" or SPN of "246" applied to persons who were separated under the provisions of chapter 10, Army Regulation 635-200, by reason of for the good of the service – in lieu of trial by court-martial. 11. 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 (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. 12. 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. 13. There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations. DISCUSSION AND CONCLUSIONS: 1. The specific facts and circumstances leading to the applicant's discharge are not contained in the official record. The only available evidence in the applicant's official record shows he was court-martialed on 2 occasions for being AWOL and he had 616 days of lost time due to being AWOL. However, it is noted, that the punishment given the applicant at both of his courts-martial was relatively light in view of his lengthy periods of being AWOL. 2. The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial. With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge. The charges against him are unknown. However, he would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial. In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ. In the absence of evidence to the contrary, regularity is presumed in the discharge process. 3. The applicant's contentions were carefully considered; however, they were insufficiently mitigating in view of his lengthy periods of AWOL. Given the foregoing, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel warranting an honorable of general discharge. 4. Although the specific facts and circumstances leading to the applicant's discharge are not contained in the official record, based on his lost time alone, the narrative reason for discharge appears to be proper and equitable. The applicant's RE code is based on his reason for discharge and cannot be changed unless his narrative reason for discharge is changed. In this case, the applicant has failed to provide sufficient mitigation to warrant any change in his type of discharge. Therefore, the Board found no basis upon which to change the applicant's narrative reason for discharge, his SPD code, or his RE code. 5. In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust. The applicant did not submit any evidence that would satisfy this requirement. 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 that 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) AR20080008966 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080008966 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1