PROCEEDINGS


         IN THE CASE OF:
        

         BOARD DATE: 22 August 2002
         DOCKET NUMBER: AR2002073601


         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. Wanda L. Waller		Analyst

The following members, a quorum, were present:

Ms. Joann Langston		Chairperson
Mr. Raymond V. O’Connor		Member
Ms. Barbara J. Lutz		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military
records
         Exhibit B - Military Personnel Records (including
         advisory opinion, if any)

FINDINGS :

1. The applicant has exhausted or the Board has waived the requirement for exhaustion of all administrative remedies afforded by existing law or regulations.

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2. The applicant requests, in effect, that his undesirable discharge be upgraded to honorable or general.

3. The applicant states, in effect, that he was told that if he volunteered for early out he would receive a general discharge. He contends that when he reenlisted he wanted to go to Korea but his request was denied. He states that he had already completed two tours in Vietnam and felt that he had done his part there. However, he was sent to Vietnam for a third time. He goes on to state that he got into it with his officer and was given a choice for early out with a general discharge. However, he recently discovered that he had an undesirable discharge. In support of his application, he submits a letter, dated 17 April 2002, from the Review Boards Agency, St. Louis, Missouri; a DD Form 214 with an effective date of 10 June 1970; a DD Form 214 with an effective date of
31 March 1971; and an Honorable Discharge Certificate from the Army National Guard, dated 20 January 1983.

4. The applicant’s military records show that he enlisted on 11 July 1967 for a period of 3 years. He served as a clerk in Vietnam from 18 December 1967 through 12 December 1968 and served his second tour in Vietnam as a tactical circuit controller from 10 June 1969 through 9 June 1970. On 10 June 1970, the applicant was honorably released from active duty and transferred to the U.S. Army Reserve. The applicant reenlisted on 11 August 1970 for a period of
3 years. He was transferred to Vietnam on 14 August 1970.

5. On 19 January 1971, nonjudicial punishment was imposed against the applicant for failure to go to his appointed place of duty (guard duty) and a curfew violation. His punishment consisted of a reduction to E-3 (suspended for
2 months), a forfeiture of pay, extra duty and restriction. The applicant’s appeal was denied on 28 January 1971. On 4 February 1971, the suspended portion of the sentence (reduction to E-3) was vacated.

6. On 3 February 1971, charges were preferred against the applicant for failure to obey a lawful order, violation of two lawful general regulations and breaking restriction.

7. On 9 February 1971, three additional charges were preferred against the applicant for behaving himself with disrespect toward a superior commissioned officer and communicating two threats to injure. Trial by special court-martial was recommended.

8. On 19 February 1971, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10. He indicated in his request that he understood if his request for discharge is accepted 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 and that he may be ineligible for many or all benefits administered by the Veterans Administration. He also acknowledged that he may be deprived of his rights and benefits as a veteran under both Federal and State law and that he may encounter substantial prejudice in civilian life by reason of an undesirable discharge. Additionally, the applicant elected not to submit a statement in his own behalf.

9. On 24 February 1971, the unit commander recommended that the applicant’s request for discharge be approved and that he be furnished an Undesirable Discharge Certificate. The unit commander stated, in pertinent part, that “[The applicant] has proven himself capable of performing in a military environment, as is reflected by his service records. However, since being assigned to this unit his conduct and job performance has proven to be unsatisfactory. This indicates that [the applicant] is fully capable, when he desires to be, but is over all lacking in dependability and professional consistency. [The applicant] has received one Article 15 in this unit, given on 18 Jan 71, for misconduct. A portion of this sentence was a suspended reduction. On 2 Feb 71, this suspension was vacated, due to further misconduct. He is now pending court-martial for numerous offenses, one of which is the “communication of a threat”. The undersigned has held repeated counseling sessions with [the applicant]. Not only was he non-responsive to these sessions, but became belligerent and insubordinate in most of them. It would certainly be to his best interest, and the best interest of the service, if he were administratively discharged.”

10. The intermediate commanders recommended that the applicant’s request for discharge be approved and that he be furnished an Undesirable Discharge Certificate.

11. On 24 March 1971, the separation authority approved the applicant’s request for discharge and directed that he be furnished an Undesirable Discharge Certificate.

12. The applicant was transferred to the United States on 29 March 1971.

13. The applicant was discharged with an undesirable discharge on 31 March 1971 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service. He had served 3 years, 6 months and 20 days of total active service.

14. The applicant provided an Honorable Discharge Certificate, dated
20 January 1983, from the Army National Guard.

15. There is no indication in the available records that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

16. 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 discharge under other than honorable conditions is normally considered appropriate.

17. 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.

18. 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.

CONCLUSIONS:

1. The Board considered the applicant’s contention that he was told that if he volunteered for early out he would receive a general discharge.

2. The Board reviewed the applicant’s first enlistment which included two tours in Vietnam and an honorable discharge.

3. The Board also noted the offenses for which special court-martial charges had been preferred against the applicant and the applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.

4. The Board reviewed the applicant’s second enlistment which included only seven months of service. The Board noted that he received one nonjudicial punishment and noted the conduct which led to his separation from the Army. Based on this review, the Board determined that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel. Therefore, the applicant is not entitled to an honorable discharge.

5. However, after review of all of the foregoing, the Board determined that the applicant deserved partial relief on the basis of his previous good service during two tours in Vietnam and his subsequent good service in the Army National Guard. As a result, the Board determined that his undesirable discharge should be upgraded to a general discharge.

6. In view of the foregoing findings and conclusions, it would be appropriate to correct the applicant’s records, but only as recommended below.

RECOMMENDATION:

1. That all of the Department of the Army records related to this case be corrected by showing that the individual concerned was separated from the service with a general discharge under honorable conditions on 31 March 1971.

2. That so much of the application as is in excess of the foregoing be denied.

BOARD VOTE:

JL______ RVO____ BJL_____ GRANT AS STATED IN RECOMMENDATION

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION




                  __Joann Langston_______
                  CHAIRPERSON

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INDEX

CASE ID	AR2002073601
SUFFIX
RECON
DATE BOARDED	20020822
TYPE OF DISCHARGE	(UD)
DATE OF DISCHARGE	19710331
DISCHARGE AUTHORITY	AR 635-200 Chapter 10
DISCHARGE REASON	For the good of the service
BOARD DECISION	(GRANT)
REVIEW AUTHORITY
ISSUES 1.	110.0200
2.
3.
4.
5.
6.