IN THE CASE OF:	  

	BOARD DATE:	  1 July 2008

	DOCKET NUMBER:  AR20080006969 


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 an upgrade of his discharge. 

2.  The applicant states that he served in the Republic of Vietnam and deserves his discharge to be upgraded.

3.  The applicant provided a copy of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 27 October 1968 and 11 August 1971, 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 for a period of 3 years on 7 February 1968.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 36K (Field Wireman).  He was honorably discharged on 27 October 1968 for the purpose of immediate reenlistment, and he reenlisted for a period of 3 years on 28 October 1968.  The highest rank/grade he attained during his military service was specialist five (SP5)/E-5.

3.  The applicant's records also show he was awarded the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, two Overseas Service Bars, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-14).  However, his records do not show any significant acts of valor during his military service.

4.  The applicant's record reveals 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 3 March 1970, for being absent without leave (AWOL) during the period on or about 2 February 1970 through on or about 26 February 1970.  His punishment consisted of reduction to the rank/grade of specialist four (SP4)/E-4 (suspended for 90 days), a forfeiture of $75.00 pay for 2 months, 45 days of restriction, and 45 days of extra duty; 

	b.  on 25 March 1970, the suspension of punishment of reduction to SP4/E04, imposed on 3 March 1970, was vacated and the unexecuted portion ordered executed; 

	c.  on 7 April 1970, for failing to go to his appointed place of duty, on or about 5 April 1970.  His punishment consisted of a forfeiture of $30.00 pay for 
1 month; 

	d.  on 8 May 1970, for being AWOL during the period on or about 4 May 1970 through on or about 6 May 1970.  His punishment consisted of reduction to the rank/grade of private first class (PFC)/E-3, forfeiture of $25.00 pay for 
1 month, 14 days of restriction, and 14 days of extra duty; and

	e.  on 27 May 1970, for breaking restriction, on or about 16 May 1970, and for being AWOL during the period on or about 18 May 1970 through on or about 20 May 1970.  His punishment consisted of reduction to the rank/grade of private (PV2)/E-2, a forfeiture of $50.00 pay for 2 months, and 14 days of extra duty.  

5.  On 1 October 1970, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 30 October 1970.  He was apprehended by civil authorities and was returned to military control at Fort Jackson, South Carolina, on 16 July 1971.  

6.  On 21 July 1971, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods from on or about 2 July 1970 through 24 August 1970 and from on or about 1 October 1970 through 
16 July 1971.  

7.  On 21 July 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ); of the possible effects of an under other than honorable conditions discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service, in lieu of trial by court-martial, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or a dishonorable discharge.  He further acknowledged he understood that if the 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  On 21 July 1971, the applicant’s immediate commander remarked that a careful review of the applicant’s record in conjunction with his negative attitude toward honorable service indicated that the best interest of the Army would be served with an approval.  The immediate commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  

10.  On 29 July 1971, the applicant’s intermediate commander also recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  The intermediate commander further remarked that approval of the applicant’s discharge was in the best interests of the Army.




11.  On 4 August 1971, the separation authority approved the applicant's request for discharge for the good of the service, in accordance with chapter 10 of Army Regulation 635-200, and directed he receive an Undesirable Discharge Certificate and be reduced to private/E-1.  Accordingly, the applicant was discharged on 11 August 1971.  The DD Form 214 he was issued shows he was discharged for the good of the service, under the provisions of chapter 10, Army Regulation 635-200, with a character of service of under other than honorable conditions.   This form further shows he completed 2 years, 2 months, and 
19 days of creditable military service and he had 341days of lost time due to being AWOL.

12.  On 29 June 1981, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.  

13.  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, 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, a discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 his discharge should be upgraded.

2.  The applicant’s records show he 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 trail by court-martial.  The applicant knowingly, willingly, and voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge. 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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 _   _______   ______________
       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)                                         AR20080006969



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ABCMR Record of Proceedings (cont)                                         AR20080006969



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