IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080007410 


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 undesirable discharge be upgraded to a general discharge, under honorable conditions. 

2.  The applicant states, in effect, that the stress imposed upon him during the Vietnam War played a big part in his “actions” for which he is apologetic for and if he could take them back he would.  

3.  The applicant provides a copy of his separation document and two character reference letters 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 enlisted in the Regular Army on 25 November 1969, for a period of 2 years.  He completed the required training and was awarded military occupational specialty (MOS) 13A (Artillery Crewman).  The highest rank he attained while serving on active duty was Specialist Four (SP4)/E-4.

3.  The applicant was honorably discharged from active duty on 29 September 1970, for the purpose of immediate reenlistment.

4.  On 30 September 1970, the applicant reenlisted into the Regular Army.  He completed the required training and was awarded military occupational specialty (MOS) 64C (Motor Transportation Operator).  He served a tour of duty in the Republic of Vietnam (RVN) from 26 June 1971 through 2 November 1971 and was assigned to the 515th Transportation Company.

5.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.

6.  On 19 April 1971 the applicant accepted nonjudicial punishment (NJP) for failing to go at the prescribed time to his appointed place of duty on 15 April 1971.  His imposed punishment was a reduction to the grade of private first class (PFC)/E-3 (suspended for 60 days) and a forfeiture of $35.00 pay for 1 month.

7.  On 11 September 1971, court-martial charges were preferred against the applicant for two specifications of striking his superior commissioned and noncommissioned officer with his fist, three specifications of disobeying lawful orders from his superior commissioned and warrant officers, one specification of disrespectful in language toward his superior warrant officer, one specification of wrongfully communicating a threat to kill a military policeman, who was then in the execution of his office; and three specifications of wrongfully communicating threats to kill his superior commissioned and noncommissioned officers.

8.  On an unknown date, 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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  

9.  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.  He further 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.  The applicant did not submit a separate statement on his behalf requesting discharge for the good of the service in accordance with Army Regulation 635-200.

10.  On 10 November 1971, the separation authority directed that the applicant be separated under the provisions of paragraph 10, Army Regulation 635-200, for the Good of the Service.  Special Orders Number 214, Headquarters, U.S. Army Personnel Center, Fort Lewis, Washington, dated 10 November 1971, show that the applicant was discharged, effective 10 November 1971, in accordance with AR 635-200, by reason of for the good of the service.  It further shows that the applicant was issued an Undesirable Discharge Certificate.

11.  On 16 July 1981, the Army Discharge Review Board denied the applicant's petition for an upgrade his discharge.

12.  The applicant submitted two character reference letters; but they did not provide eyewitness accounts of the events that led up to the applicant’s discharge.

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

14.  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’s contention was carefully considered and found to be without merit. 
2.  The evidence of record shows that the applicant voluntarily requested and accepted discharge in lieu of court-martial.

3.  The evidence of record shows that the applicant was discharged with an undesirable discharge and had 7 days of lost time.

4.  The evidence of record confirms that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  The record further shows the applicant’s discharge accurately reflects his overall record of undistinguished service.

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

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)                                         AR20080007410



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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