RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070006758 


	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.


Ms. Catherine C. Mitrano

Director

Mr. Mohammed R. Elhaj

Analyst

The following members, a quorum, were present:


Ms. Susan A. Powers

Chairperson

Mr. Edward E. Montgomery

Member

Mr. Qawiy A. Sabree

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 an upgrade of his discharge.

2.  The applicant states, in effect, that he was not informed of the consequences of his separation and that his sentence was too harsh.  Additionally, he states that he served and was wounded in the Republic of Vietnam.

3.  The applicant did not provide any additional documentary 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's records show that he enlisted in the Regular Army on 29 August 1967.  He completed basic combat and advanced individual training and was awarded military educational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank he attained while serving on active duty was sergeant/pay grade E-5.

3.  The applicant's records further show that he served in the Republic of Vietnam during the period 14 February 1968 through 2 February 1969.  He was assigned to Company D, 2nd Battalion, 7th Cavalry, 1st Cavalry Division.

4.  The applicant’s records show he was awarded the Purple Heart, the Bronze Star Medal with "V" Device, the Combat Infantryman Badge, the Air Medal, as well as other awards and decorations.


5.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 19 August 1969, for failing to go to his appointed place of duty on
18 August 1969.  His punishment consisted of forfeiture of $50 pay for one month; and

	b.  on 24 March 1970 for failing to go to his appointed place of duty on 21 March 1970.  His punishment consisted of forfeiture of $25 pay for one month. 

6.  The facts and circumstances surrounding the applicant’s discharge proceedings are not available for review with this case.  However, the applicant's records show that on 30 June 1970, the separation authority approved the applicant’s separation for discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) and directed the applicant be reduced to the lowest enlisted grade prior to discharge and be issued an Undesirable Discharge Certificate.

7.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) the applicant was issued at the time of his discharge confirms he was discharged with an undesirable discharge, characterized as under other than honorable conditions.  This form further confirms that he completed a total of 2 years, 10 months, and 9 days of creditable active military service.

8.  The applicant's records show that he applied to the Army Discharge Review Board for an upgrade of his discharge on an unknown date.  However, there was a delay in retrieving the applicant's military records from the National Personnel Records Center.  The applicant was advised by letter of this delay and offered the option to continue review of his case or close the case altogether.  The applicant's records do no show that he responded to this letter.

9.  Army Regulation 635-200 (Personnel Separations) 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 discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, at the time, an undesirable discharge was normally considered appropriate.

10.  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.

11.  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.  The applicant contends that he is entitled to an upgrade of his discharge.

2.  In the absence of the facts and circumstances surrounding the applicant’s discharge proceedings, it is presumed that the discharge proceedings were conducted in accordance with law and regulation applicable at the time.

3.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trail by court-martial.  The applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were presumably met, and the rights of the applicant were presumably fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records nor did the applicant provide documentation to substantiate an upgrade of his discharge.  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 evidence that would satisfy that requirement







.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__sap___  __eem___  __qas___  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.



							Susan A. Powers
______________________
          CHAIRPERSON




INDEX

CASE ID
AR20070006758
SUFFIX

RECON

DATE BOARDED
20071004
TYPE OF DISCHARGE
(UD)
DATE OF DISCHARGE
19700707
DISCHARGE AUTHORITY
AR 635-200, Chap 10
DISCHARGE REASON

BOARD DECISION
(DENY)
REVIEW AUTHORITY

ISSUES         1.
144.0000
2.

3.

4.

5.

6.