RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  14 February 2008
	DOCKET NUMBER:  AR20070014954 


	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

Ms. Jeanne Marie Rowan

Analyst

The following members, a quorum, were present:


Mr. John T. Meixell

Chairperson

Ms. Carmen Duncan

Member

Ms. Rea M. Nuppenau

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, in effect, that his discharge under other than honorable conditions be upgraded to a general discharge under honorable conditions. 

2.  The applicant states, in effect, that he has stopped drinking, which was a problem after his discharge, that he is divorced, that he has reconciled with a parent, and that he has worked most of his life until he was disabled.  He states he has a new outlook on life and after suppressing his military experiences, he would like to correct his record.  

3.  The applicant provides a copy of DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) with a separation date of 6 November 1970 and a letter, dated 20 September 2007, from the New Mexico Department of Human Services, which states that the applicant has faced many difficult life situations and that he has accepted responsibility for his actions.  The letter also states that the applicant is an active and compliant food stamp client.

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 enlisted in the Regular Army on 15 January 1968 for a period of 3 years.  Records show that he completed basic combat and advanced individual training and was awarded the military occupational specialty 62B (Engineer Equipment Repairman).  The highest rank he attained while serving on active duty was specialist four/pay grade E-4.

3.  Records show the applicant was assigned to A Company, 809th Engineer Battalion (Construction) with duty in Thailand from 17 June 1968 to 5 December 1968.  His conduct and efficiency ratings for this period were unsatisfactory and good.  He was reassigned to D Company, 809th Engineer Battalion (Construction) in Thailand on 6 December 1968 and served with excellent conduct and efficiency ratings.  He was reassigned to Fort Belvoir, Virginia, on 13 June 1969.  On 23 January 1970, the applicant was reassigned to 583rd Collection, Classification and Salvage (CC&S) Company, 91st Engineer Battalion with duty in Germany.  

4.  The applicant's records do not show any significant acts of valor during his military service.  His DD Form 214 shows that he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal and two overseas service bars.

5.  The applicant's records reveal that he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), on four separate occasions for being disrespectful in language toward a superior commissioned officer, driving without a valid drivers license, failure to go to his appointed place of duty on two occasions, drunk and disorderly conduct, and assault. 

6.  On 26 November 1969, the applicant was convicted by a Special Court-Martial of violating Article 91 of the UCMJ for being disrespectful to a superior commissioned officer.  

7.  The applicant's separation processing packet was not available for review.
All the facts and circumstances pertaining to the applicant’s discharge are not on file.  However, there is one filed document, dated 12 October 1970, from the commanding general's Staff Judge Advocate, which stated that charges were referred on 15 August 1970, that the applicant requested a discharge under the provisions of chapter 10, Army Regulation 635-200, then charges were preferred on 10 September 1970 for 3 specifications of violating lawful general regulations and 2 specifications of wrongfully possessing marijuana, a controlled substance. This same document shows that the Bad Conduct Discharge (BCD) Special Court-Martial was rereferred on 11 September 1970 and that counsel for the applicant was appointed on this same date.  This document further stated that the applicant was confined to pretrial confinement on 14 September 1970.  

8.  The DD Form 214 the applicant was issued on 6 November 1970 confirms he was discharged and issued an Undesirable Discharge Certificate with his characterization of service as under conditions other than honorable and that he completed 2 years, 8 months, and 11 days of creditable active military service.  He had 42 days time lost.

9.  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.  

10.  Chapter 10 of Army Regulation 635-200 (Personnel Separation), provides that the applicant must have indicated that he understood that by requesting a discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He must have acknowledged 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.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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.  At the time, an undesirable discharge was normally considered appropriate.

12.  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.

13.  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 CONCLUSION:

1.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.
2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial and that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

3.  Based on his record of indiscipline and 42 days of time lost, 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, the applicant is not entitled to a general discharge or an honorable discharge.

4.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__JTM_ _  __CD  _ _  __RMN__  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.




___John T. Meixell    __
      CHAIRPERSON


INDEX

CASE ID
AR
SUFFIX

RECON

DATE BOARDED
20080214
TYPE OF DISCHARGE

DATE OF DISCHARGE

DISCHARGE AUTHORITY

DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.

2.

3.

4.

5.

6.