IN THE CASE OF:	  

		BOARD DATE:	       18 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080011694 


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 his discharge should be upgraded due to the unusual circumstances of his personal hardship that led to his discharge at the time. 

3.  The applicant provides a copy of his physical profile record and a copy of his clinical record, dated 15 February 1968, 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 enlisted in the Regular Army for a period of 3 years on 26 July 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapon Infantryman).  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records further show he served in the Republic of Vietnam from 5 February 1968 to 4 February 1969.  His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal, the Combat Infantryman Badge, the Republic of Vietnam Campaign Medal, the Army Commendation Medal, and the Vietnam Unit Citation.  His records do not show any significant achievements or acts of distinction during his military service.

4.  The applicant's records reveal 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 18 September 1967, for failing to return to the company area at the appointed time, on or about 10 September 1967.  His punishment consisted of a forfeiture of $10.00 pay and 7 days of restriction;

   b.  on 8 November 1967, for being absent without leave (AWOL) on or about 6 November 1967.  His punishment consisted of a forfeiture of $21.00 pay, 14 days of extra duty (suspended), and 14 days of restriction;
   
   c.  on 26 January 1968, for being AWOL during the period on or about 4 January 1968 through 26 January 1968.  His punishment consisted of reduction to private (PVT)/E-1 and a forfeiture of 7 days of base pay;
   
   d.  on 11 April 1969, for failing to go at the time prescribed to his appointed place of duty, on or about 10 April 1969.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and a forfeiture of $35.00 pay for 1 month (suspended for 60 days); and
   
   e.  on 25 November 1969, for violating a lawful general order by having a weapon in the barracks wall locker, on or about 24 November 1969.  His punishment consisted of a forfeiture of $20.0 pay for one month, 7 days of restriction, and 7 days of extra duty.

5.  On 31 March 1970, the applicant pled not guilty at a Special Court-Martial to one specification of being AWOL during the period on or about 21 December 1969 through 14 February 1970.  The Court found him guilty and sentenced him to reduction to PVT/E-1.  The sentence was adjudged on 31 March 1970 and approved on 3 April 1970.

6.  On 10 June 1970, the applicant accepted more nonjudicial punishment under the provisions of Article 15 of the UCMJ for being for being AWOL during the period on or about 2 June 1970 through 8 June 1970, and missing movement on or about 2 June 1970.  His punishment consisted of 30 days of restriction, 
30 days of extra duty, and reduction to private first class (PFC)/E-3 (suspended for 60 days).  

7.  On 12 June 1970, the applicant departed his unit in an AWOL status.  On 
20 June 1970, the suspended portion of punishment imposed on 10 June 1970 was vacated.  On 1 August 1970, he was apprehended by civil authorities and returned to military control.

8.  On 17 August 1970, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 12 June 1970 through 1 August 1970.  

9.  On 24 August 1970, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or an undesirable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for 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 (AR) 635-200 (Personnel Separations).

10.  In his request for discharge, the applicant acknowledged that he understood 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 discharge or a discharge under other honorable conditions.  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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

11.  On 24 August 1970, the applicant’s immediate commander recommended approval of the applicant’s discharge with the issuance of an Undesirable Discharge Certificate.  

12.  On 3 September 1970, the applicant’s senior commander recommended approval of the applicant’s discharge with an Undesirable Discharge Certificate.  

13.  On 3 September 1970, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200 and directed he receive an Undesirable Discharge Certificate and that he be reduced to the lowest enlisted grade.  On 4 September 1970, the applicant was discharged accordingly.  The DD Form 214 that he was issued shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  He had completed a total of 2 years, 
7 months, and 15 days of creditable active military service and he had 176 days of lost time.

14.  The applicant submitted a copy of his physical profile record and clinical record, dated 15 February 1968, that show he had a hole in his right ear drum and that the military doctor recommended the applicant not perform field duty and to keep water out of his ears.   

15.  On 22 December 1983, the Army Discharge Review Board (ADRB) denied the applicant’s petition to upgrade his discharge.

16.  AR 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.

17.  AR 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.

18.  AR 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.  There is no evidence in the applicant’s records, and the applicant did not provide any substantiating evidence that shows he suffered any personal hardship or that he addressed such an issue with his chain of command or that he used any of the support channels available to him.  Furthermore, there is no evidence that his AWOL period and other instances of misconduct were due to a personal hardship. 

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, 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.

4.  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)                                         AR20080011694



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ABCMR Record of Proceedings (cont)                                         AR20080011694



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