IN THE CASE OF:	  

		BOARD DATE:	        19 August 2008

		DOCKET NUMBER:  AR20080008530 


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 got into a fight with and defended himself against three other Soldiers and that those Soldiers were going to press charges against him.  He was told by his legal counsel that a discharge in lieu of a court-martial (chapter 10) would be the easiest way and that his discharge would turn into an honorable or a general within a short period of time.  He further adds that a few years after his discharge, he consulted with a lawyer who told him that he (the applicant) should have elected a court-martial instead of a discharge, because the other Soldiers outnumbered him and started the fight.  He also adds that he had a good military record during which he executed a reenlistment, served in Vietnam, and earned a Combat Infantryman Badge.  He was a young Soldier at the time and had a small drinking problem.  However, he has been straight for 17 years and intends to continue that way in the future.  

3.  The applicant provided an undated character reference letter from his wife 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 he was born on 20 March 1950 and enlisted in the Regular Army at the age of 17 for a period of 3 years on 30 June 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11C (Infantry Indirect Fire Crewman).  He was honorably discharged on 26 October 1970 for the purpose of immediate reenlistment and reenlisted for a period of 3 years on 27 October 1970.  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he served in the Republic of Vietnam from 3 April 1968 to 2 April 1969 and in Germany from 21 June 1970 to 9 December 1971.  His awards and decorations include the Combat Infantryman Badge, the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, the Expert Marksmanship Qualification Badge with Rifle Bar (M-14), and two Overseas Service Bars.  His records do not show any significant acts of valor during his military service.

4.  On 2 October 1967, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for absenting himself from his unit without proper authority from 2300 hours on 30 September 1967 to 0400 hours on 1 October 1967.  His punishment consisted of a forfeiture of $20.00 for 1 month.  

5.  On 4 June 1971, the applicant pled guilty at a General Court-Martial to the charge and three specifications of committing carnal knowledge on or about 
25, 26 and 28 February 1971, and one specification of absenting himself from his unit without authority from on or about 5 December 1970 through 23 January 1971, and three specifications of having sexual intercourse with a woman, not his wife, on or about 25, 26 and 28 February 1971.   

6.  The Court found him guilty of all charges and specifications and sentenced him to confinement at hard labor for 4 months, a forfeiture of $100.00 pay per month for 4 months, and reduction to private (PVT)/E-1.  The sentence was adjudged on 4 June 1971.

7.  On 5 August 1971, the convening authority approved the applicant's sentence and ordered it executed.  He further ordered the record of trial be forwarded to The Judge Advocate General of the Army for review by the Army Court of Military Review.

8.  On an unknown date in 1971, the U.S. Army Court of Military Review affirmed the approved findings of guilty and the sentence.

9.  Headquarters, U.S. Army Training Center and Fort Campbell, Fort Campbell, Kentucky, General Court-Martial Order Number 137, dated 12 August 1971, shows that, after completion of all required post-trial and appellate reviews, the convening authority ordered the unexecuted portion of the applicant’s sentence to confinement at hard labor for 4 months remitted.  

10.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, the applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows that he was discharged for the good of the service, in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations), with a character of service of under conditions other than honorable.  This form further confirms the applicant completed 3 years, 12 months, and 19 days of creditable active military service and had 211 days of lost time.

11.  In her undated letter, the applicant’s wife states that she has known the applicant since 1991 and she knew he had a drinking problem when they first met.  He has since been sober for over 17 years, raised a family, stayed out of trouble and he has been a role model for their children.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15 year statute of limitations.

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 3-7a, 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 evidence of record shows that the applicant was 17 years of age at the time of his enlistment and nearly 20 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of misconduct was the result of his age.

3.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, the evidence does show 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.  It is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that 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.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  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.



															XXX
      _______ _   _______   ___
               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)                                         AR20080008530



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008530



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1