IN THE CASE OF:	  

	BOARD DATE:	  

	DOCKET NUMBER:  AR20080004942 


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, in effect, that his discharge under honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states, that his discharge was too harsh.

3.  The applicant provides no additional documents 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 record shows he enlisted in the Regular Army and entered active duty on 27 May 1966, for a period of 3 years.  He was trained in, awarded and served in military occupational specialty (MOS) 11C10 (Infantryman, Direct Fire Crewman).  On 6 April 1967, the applicant was honorably discharged after serving 10 months and 10 days of honorable active service.  On 7 April 1967, the applicant immediately reenlisted for 4 years.  The highest grade attained was pay grade E-4.  

3.  On 14 October 1967, while assigned to a unit in Germany, the applicant accepted nonjudicial punishment (NJP) for leaving his appointed place of duty without proper authority.  His imposed punishment was a forfeiture of $28.00 pay and 14 days of extra duty. 

4.  On 18 March 1968, the applicant accepted NJP for being absent without leave (AWOL) from 21 February to 16 March 1968.  His imposed punishment was a reduction to pay grade E-3 and a forfeiture of $50.00 pay.

5.  On 20 December 1968, while assigned to a unit in Vietnam, the applicant accepted NJP for disobeying a lawful order.  His imposed punishment was a forfeiture of $30.00 pay.

6.  On 10 December 1969, while assigned to a unit at Fort George G. Meade, Maryland, the applicant was convicted by a Special Court-Martial of being AWOL from 18 September to 24 November 1969.  He was sentenced to reduction to pay grade E-3, a forfeiture of $100.00 pay per month for 2 months and 60 days of restriction. 

7.  Between January and February 1970, while assigned to Fort George G. Meade, Maryland, the applicant accepted three NJP’s for being AWOL from 
25 to 27 January 1970, from 12 to 17 February 1970 and from 18 to 
26 February 1970; and for leaving his appointed place of duty without proper authority.  His punishment included forfeitures, extra duties and a reduction to pay grade E-2.

8.  On 8 June 1970, court-martial charges were preferred against the applicant for being AWOL from 28 February to 31 May 1970.

9.  On 23 June 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of a bad conduct or a dishonorable discharge and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  He also stated his understanding 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.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an undesirable discharge.  

10.  On 14 July 1970, the separation authority approved the applicant’s request, directed that the applicant be reduced to the lowest enlisted grade, that he be discharged under the provisions of Army Regulation 635-200, Chapter 10 and that he receive an Undesirable Discharge Certificate.  On 27 July 1970, the applicant was discharged accordingly.  The discharge document (DD Form 214) he was issued confirms he completed a total of 3 years, 7 months and 22 days of creditable active military service and 156 days of time lost.  He was awarded the National Defense Service Medal, the Vietnam Service Medal and the Vietnam Campaign Medal.     

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 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.  However, at the time of the applicant's separation the regulation provided for the issuance of an Undesirable Discharge Certificate.

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.

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.

14.  On 4 April 1977, the DOD directed the Services to review all less than fully honorable administrative discharges issued between 4 August 1964 and 
28 March 1973.  This program, known as the DOD Discharge Review Program (Special) (SDRP), required, in the absence of compelling reasons to the contrary, that a discharge upgrade to either honorable or general be issued in the case of any individual who had either completed a normal tour of duty in Southeast Asia, been wounded in action, been awarded a military decoration other than a service medal, had received an honorable discharge from a previous period of service, or had a record of satisfactory military service of 24 months prior to discharge.  Consideration of other factors, including possible personal problems which may have contributed to the acts which led to the discharge and a record of good citizenship since the time of discharge, would also be considered upon application by the individual.

15.  In October 1978, Public Law 95-126 was enacted.  This legislation denied Veterans Administration (VA) benefits to any former service member who had been AWOL for more than 180 consecutive days, or who had been classified as a deserter or a conscientious objector.  The DOD was required to establish historically consistent, uniform standards for discharge reviews.  Reconsideration using these uniform standards was required for all discharges previously upgraded under the SDRP and certain other programs were required.  Individuals whose SDRP upgrades were not affirmed upon review under these historically consistent uniform standards were not entitled to VA benefits, unless they had been entitled to such benefits before their SDRP review.

16.  On 6 July 1978, the ADRB under the DOD Discharge Review Program (Special) upgraded the applicant’s discharge to a discharge Under Honorable Conditions (General), effective 23 May 1977.

17.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the 
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The contention of the applicant was carefully considered and found to be insufficient evidence to support granting the relief requested in this case.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process and his discharge accurately reflects his overall record of his military service.  

3.  The applicant’s conduct was inconsistent with the Army’s standards for acceptable personal conduct and his overall quality of service was not so meritorious as to warrant a fully honorable discharge.  Therefore, there is no evidence nor has the applicant presented any evidence to warranted relief beyond that already provided by the ADRB.

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

5.  Records show the applicant exhausted his administrative remedies in this case when his case was last reviewed by the ADRB on 6 July 1978.  

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)                                         AR20080004942



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ABCMR Record of Proceedings (cont)                                         AR20080004942



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