RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  4 October 2007
	DOCKET NUMBER:  AR20070008000 


	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. Rial D. Coleman

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 that his general discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that his discharge should be upgraded based upon the Army Discharge Review Board’s (ADRB) approval of his previous request for upgrade.  The applicant continues that he is entitled to an upgrade because he never received a court-martial.  The applicant concludes that his eligibility for medical assistance has been discontinued.

3.  The applicant provides a copy of his upgraded DD Form 214 (Report of Separation from Active Duty) that was issued as a result of the ADRB findings on 25 May 1977 in support of this 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 he was inducted on 17 September 1969.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 94B (Cook).  The highest rank the applicant attained while serving on active duty was private first class/pay grade E-3.  The applicant’s record documents that he was awarded the Air Medal for meritorious achievement while participating in aerial flight in the Republic of Vietnam and a Viet Nam Service Medal with two Bronze Service Stars.  

3.  The applicant’s record reveals a disciplinary history that began during basic combat training and includes punishment by summary court-martial for wrongfully and without authority wearing upon his uniform an insignia of grade higher than he possessed, the ribbon representing the Silver Star, the ribbon representing the Bronze Star, and the ribbon representing the Purple Heart.  His record also shows disciplinary action resulting from Special Court-Martial on three occasions for the following offenses:  22 December 1969, for two counts of stealing property; 30 May 1971, for being absent without leave (AWOL) three times (for periods of one day, three days, and two days respectively); and 18 August 1971, for stealing property.

4.  The applicant's record also includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five occasions for the following offenses:  27 October 1969, for failing to be at his place of duty at the appropriate time; 22 September 1970, for being AWOL for two days, falsifying a document with the intent to commit fraud, and impersonating a commissioned officer; 11 January 1971, for failing to be at his place of duty at the appropriate time; 26 February 1971, for failing to be at his place of duty at the appropriate time and appearing in the improper uniform; and 13 March 1971, for possession of a narcotic.

5.  On 17 August 1971, the record shows that the unit commander recommended that the applicant appear before trial by special court-martial.  The record also indicates the applicant was advised of his right for discharge under chapter 10 of Army Regulation 635-200 (Personnel Separations) and that he declined to submit a request at that time.  

6.  On 15 September 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 27 September 1971, the separation authority approved the applicant's request and directed his separation under the provisions of chapter 10 of Army Regulation 635-200 and that he receive an Undesirable Discharge Certificate.  The record shows that on 5 October 1971, the applicant was discharged accordingly.  The DD Form 214 issued to him at the time, confirms the applicant completed a total of 1 year, 9 months, and 21 days of creditable active military service and an under other than honorable conditions character of service.

8.  On 30 September 1975, the applicant submitted a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States) requesting an upgrade of his discharge so he would be eligible to reenter the Army.

9.  On 23 June 1977, the ADRB approved upgrading the applicant's discharge from under conditions other than honorable to under honorable conditions (general) effective 25 May 1977.  As a result of this decision, the applicant was issued a revised DD Form 214, confirming the upgrade of his character of service from under other than honorable conditions to under honorable conditions.

10.  On 7 July 1977, the applicant submitted a DD Form 293 (Application for Review of Discharge or Dismissal from the Armed Forces of the United States) requesting an upgrade of his discharge from under honorable conditions to honorable.  The applicant continues that he disagreed with the Army Discharge Review Board's decision on 25 May 1977 to render him a character of service of under honorable conditions based upon the fact that he had never received a court-martial.

11.  On 18 July 1977, the Army Discharge Review Board informed the applicant that his discharge had been re-reviewed as required by Public Law 95-126.  As a result of this review, the board determined that he was not qualified for upgrading under the new standards for discharge review and did not affirm his previous upgrade.  The Army Discharge Review Board informed the applicant that although their decision in no way changed his previously upgraded discharge, because of a new law, he would not be able to use that discharge to qualify for benefits under the Veterans Administration.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an honorable discharge based on the fact that he never received a court-martial was carefully considered and determined to be without merit.

2.  Evidence of records shows that the applicant consulted with legal counsel prior to submitting a voluntary written request for discharge for the good of the service under the provisions of Army Regulation 635-200.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

3.  The applicant’s record reveals a disciplinary history that includes punishment by summary court-martial for wrongfully and without authority wearing upon his uniform an insignia of grade higher than he possessed and ribbons representing the Silver Star, the Bronze Star Medal, and the Purple Heart.  His record also shows disciplinary action resulting from special court-martial on three occasions for stealing property from three individuals and being AWOL three times.  The applicant's record also includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on five occasions for failing to be at his place of duty at the appropriate time three times, for being AWOL, falsifying a document with the intent to commit fraud, impersonating a commissioned officer, appearing in the improper uniform, and for possession of a narcotic.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__SAP__  _EEM__  ___QAW__  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
AR
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE
YYYYMMDD
DISCHARGE AUTHORITY
AR . . . . .  
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.