IN THE CASE OF:	  

		BOARD DATE:	  19 August 2008

		DOCKET NUMBER:  AR20080008552 


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 (UD) be upgraded.

2.  The applicant states, in effect, that he was informed his discharge would be upgraded after one year.  He states he had difficulty performing garrison duty after 18 months of service in combat.  He claims the promise made to him was breeched and states it would be an honor if he were to receive an upgrade of his discharge, and it would avoid his family feeling the disgrace he has over the years. 

3.  The applicant provides no documentary evidence 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 military record shows he initially enlisted in the Regular Army (RA) and entered active duty on 3 May 1966, and was trained in and awarded, military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant's Enlisted Qualification Record (DA Form 20) shows, in Item 33 (Appointments and Reductions), that he was promoted to the rank of specialist four (SP4) on 26 June 1967, and that this was the highest grade he attained while serving on active duty.  Item 31 (Foreign Service) shows he served in the Republic of Vietnam (RVN) from 7 October 1966 through 29 May 1968.

4.  On 28 July 1968, the applicant was honorably released from active duty (REFRAD) for the purpose of immediate reenlistment.  The DD Form 214 issued to him at that time shows he completed 2 years, 2 months, and 26 days of active federal service, of which 1 year, 7 months, and 22 days of foreign service.  On 
29 July 1968, the applicant reenlisted in the RA and remained on active duty.  

5.  The applicant’s record reveals a disciplinary history that includes acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  7 March 1967, for being absent from his place of duty on
6 March 1967; and 26 August 1968, for being absent from his place of duty on 18 August 1968.

6.  An Insert Sheet (Record of Court-Martial Conviction (DA Form 20B)) to the applicant's DA Form 20 shows that on 29 July 1969, a Special Court-Martial (SPCM) found the applicant guilty of four specifications of violating Article 86 of the UCMJ by being absent without leave (AWOL) from 8 through 25 September 1968; 4 through 10 October 1968; 15 October through 8 November 1968; and 
2 through 24 December 1968.  The resultant sentence was confinement at hard labor for six months, a forfeiture of $70.00 per month for six months, and reduction to private/E-1 (PV1).

7.  On 27 March 1970, 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 UD, 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, under the provisions of Chapter 10, Army Regulation 635-200.


8.  In his request for discharge, the applicant acknowledged he understood 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 also indicated he understood he could face substantial prejudice in civilian life because of an UD.

9.  On 24 April 1970, the separation authority approved the applicant's request for discharge under the provisions of Chapter 10, Army Regulation 635-200, and directed he receive an UD.  On 30 April 1970, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant at the time confirms he was separated under the provisions of Chapter 10, Army Regulation 635-200, and that he completed a total of 2 years, 8 months and
22 days of active military service.  Item 30 (Remarks) includes an entry which shows he accrued 461 days of lost time.

10.  On 4 November 1983, the Army Discharge Review Board (ADRB), after carefully considering the applicant’s case, concluded that his discharge was proper and equitable, and voted to deny his request to upgrade his discharge.

11.  On 17 November 1983, a (DD Form 215) correction to the DD Form 214 was issued to correct Item 30 to show the applicant accrued 478 days vice 461 days of lost time during the following periods:  8 – 4 September 1968; 4 – 9 October 1968; 17 October – 7 November 1968; 2 – 23 December 1968; 11 January – 
12 March 1969; 18 March – 5 June 1969; 7 June – 20 August 1969; 26 August 1969 – 10 February 1970; and 20 February – 18 March 1970.

12.  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.  Although the separation authority may authorize a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the members record, an under other than honorable conditions discharge is normally considered appropriate for members separated under these provisions.  At the time of the applicant's discharge, the issued of an UD was authorized.  


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that he was promised that his UD would be upgraded in one year in exchange for his resignation from the Army was carefully considered.  However, there is insufficient evidence to support this claim.  The Army does not now have and has never had an automatic policy to upgrade discharges.  Members may apply to either the ADRB or this Board for an upgrade, and if either board determines the discharge was improper or inequitable, an upgrade may be authorized.  

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  The applicant, after consulting with counsel and being advised of his rights and the effects of an UD, voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to an offense(s) under the UCMJ that authorized a punitive discharge.  All requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.

3.  The evidence of record further shows the applicant voluntarily requested discharge to avoid a trial by court-martial that may have resulted in his receiving a punitive discharge.  The UD the applicant received was normal and appropriate under the regulatory guidance, and given his extensive disciplinary history, his record of service clearly did not support a GD or HD at the time of his discharge, nor does it support an upgrade now.

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.

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)                                         AR20080008552



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080008552


2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1