BOARD DATE: 7 January 2016 DOCKET NUMBER: AR20150005852 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 an upgrade of his character of service to under honorable conditions (general). 2. The applicant states he would like to have his character of service upgraded from under other than honorable conditions to under honorable conditions (general). He was drafted during the Vietnam War. He continuously told his chain of command he would not have a problem staying in the Army and fighting for his country. He loves his country and would fight for it if we were attacked; however, he did not know anyone in Vietnam and he could not fight for another nation. He could not understand why our Army was in Vietnam and men were being drafted if our country was not at war. He could not understand why our men were being drafted to protect another nation. 3. The applicant provides no additional evidence in support of his request. 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 inducted into the Army of the United States on 24 January 1969 and held military occupational specialty 11B (Light Weapons Infantryman). 3. His DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) from on or about 2 July 1969 to on or about 11 February 1973 (a period of 1,321 days) and from on or about 14 March 1973 to on or about 28 March 1973 (a period of 15 days). 4. His record contains a Statement of AWOL, wherein he stated he departed AWOL on or about 2 July 1969 and remained AWOL until on or about 11 February 1973. He surrendered to military authorities on 12 February 1973. 5. His record contains a Standard Form (SF) 88 (Report of Medical Examination), an SF 93 (Report of Medical History), and a DA Form 3322-R (Report of Mental Status Evaluation), each dated 16 February 1973. These forms show he underwent a mental and medical evaluation because he was pending separation. He was found mentally and physically qualified for separation and no mental condition or psychiatric concerns were indicated. 6. The applicant's record contains a DA Form 2496 (Disposition Form), dated 2 March 1973, which shows: a. After having been afforded the opportunity to consult with counsel, and having been advised by his appointed counsel of the basis for his contemplated separation under the provisions of Army Regulation 635-206 (Personnel Separations Discharge Misconduct (Fraudulent Entry, Conviction by Civil Court, and Absence Without Leave or Desertion)) and its effect and the rights available to him, he waived consideration of his case before a board of officers. b. He waived a personal appearance before a board of officers and indicated no statements on his own behalf were submitted with his request. c. He indicated he understood, that as a result of the issuance of a discharge under conditions other than honorable, he could be ineligible for many or all benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life. d. He waived representation by his appointed counsel and indicated he understood that he could, up until the date the discharge authority ordered, directed, or approved his discharge, withdraw the waiver and request a board of officers hear his case. 7. On 2 March 1973, his immediate commander recommended he be discharged under the provisions of Army Regulation 635-206, Section VII, paragraph 45b, by reason of his period of AWOL from on or about 2 July 1969 to on or about 12 February 1973. His commander also recommended he receive an undesirable discharge. 8. On 7 March 1973, his intermediate commander also recommended he be discharged under the provisions of Army Regulation 635-206, Section VII, paragraph 45b, and that he receive an undesirable discharge. 9. On 20 March 1973, the separation authority ordered his discharge under the provisions of Army Regulation 635-206, Section VII, paragraph 45b, and that he be issued an undesirable discharge. 10. His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-206, Section VII, paragraph 45b and that he received an under conditions other than honorable character of service. Additionally, he completed 5 months and 19 days of net active service with 560 days of lost time under Title 10, U.S. Code and 776 days lost subsequent to his expiration term of service. 11. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 12. Army Regulation 635-206, Section VII (Desertion and Absence Without Leave) outlines the conditions and procedures for the discharge of enlisted persons for desertion or absence without leave who are amenable to trial and whose return to military control is not prohibited. a. Paragraph 45b (Discharge by Reason of Desertion or Absence Without Leave) of this section states an individual may be considered for discharge under this regulation when the unauthorized absence has continued for more than 1 year. b. Paragraph 47 ( Type of discharge) of this section states an individual discharged by reason of desertion or absence without leave under this section normally will be furnished an Undesirable Discharge certificate, except that an Honorable or General Discharge certificate may be furnished if warranted by the particular circumstances in a given case. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel. a. 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. b. 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. DISCUSSION AND CONCLUSIONS: 1. The applicant contends his character of service should be upgraded to under honorable conditions (general) on the basis that he continually informed his chain of command that he could not fight to defend a foreign nation. 2. His record is void of any evidence to support his contention that he went AWOL because he did not believe in fighting to protect a foreign nation. 3. The issuance of a discharge under the provisions of Army Regulation 635-206, Section VII, paragraph 45b was initiated and approved by his chain of command because he was AWOL for more than 1 year. The requirements of law and regulation were met and his rights were fully protected throughout the separation process. He provided no evidence that would indicate the contrary. Further, it is presumed his discharge accurately reflects his overall record of service during his enlistment. 4. The evidence of record shows the applicant was AWOL for 1,336 days. The applicant has not provided any evidence to show his service or the conditions surrounding his discharge merited an upgrade of his service characterization. Based upon the regulatory criteria listed in Army Regulation 635-200, paragraph 3-7, his misconduct rendered his service unsatisfactory, thereby not rising to the level required for a general or an honorable characterization of service. 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) AR20150005852 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150005852 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1