IN THE CASE OF:	 

		BOARD DATE:	  6 NOVEMBER 2008

		DOCKET NUMBER:  AR20080012314


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 not given the opportunity to state his case and he has two previous honorable discharges.  He also states that he was badly addicted to heroin for a while, but he was trying to kick the habit.  He further states that he had never been in trouble and had been a little wild in his life time, but he was not responsible for what they said.  He also states, in effect, that he does not remember being charged or what they charged him with and he only talked to his company commander and first sergeant.  They asked if he was on heroin and he told them that he was.  He does not remember talking to anyone else.  He also states that he was in the wrong place at the wrong time.

3.  In support of his application, the applicant provides copies of his DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge) for the periods ending on 13 October 1968, 5 May 1971, and 13 October 1971.

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 records show he enlisted in the Regular Army in pay grade E-1 on 7 December 1967 for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 62B, Engineer Equipment Maintainer.

3.  The applicant was honorably discharged for immediate reenlistment on 13 October 1968 and was issued a DD Form 214.  He reenlisted on 14 October 1968 for 3 years.  He was advanced to pay grade E-4 (temporary) on 15 August 1969.  He served in the Republic of Vietnam from 5 April 1969 to 24 March 1970 and from 9 December 1970 to 27 September 1971.

4.  The applicant was honorably discharged for immediate reenlistment on 5 May 1971 and was issued a DD Form 214.  He reenlisted on 6 May 1971 for 4 years.

5.  On 22 August 1971, a Charge Sheet (DD Form 458) was prepared by the Commander, 528th Maintenance Company (Light) Direct Support, U.S. Army, APO San Francisco.  The applicant was charged with one specification of being in the village of Chua Khue Bac, an area that was designated as off limits to all military personnel, on 15 August 1971; and one specification of having knowledge of an unauthorized local national female being in the unit area of the 528th Maintenance Company without a valid pass or identification to be in said area, and not reporting it to the proper authorities on 15 August 1971.  He was also charged with one specification of wrongfully possessing one vial of heroin on 15 August 1971; and one specification of disposing of, by throwing out of the back of a 2 1/2 ton truck in the village of Chua Khue Bac, five each 24 volt, dry cell batteries, the property of the U.S. Army, on 15 August 1971.  The applicant was further charged with one specification of wrongfully appropriating a 2 1/2 ton truck, the property of the 528th Maintenance Company, by having his vehicle in the village of Chua Khue Bac, an area he was not authorized to be in, on 15 August 1971; and one specification of transporting a female local national in his vehicle without valid authorization to do so on 15 August 1971.

6.  On 23 August 1971, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to the request for discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished a UD Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 5 September 1971, the applicant's unit commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  The unit commander stated that retention of the applicant's service would be of no benefit to the U.S. Army and would be detrimental to the morale and discipline of the personnel of his unit and the U.S. Army.  In his opinion, the applicant was mentally competent and fully aware of his actions at the time he violated Army Regulations.

8.  On 5 September 1971, the applicant's battalion commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.  The battalion commander stated that it was apparent that the applicant would continue to be a disciplinary problem.  Counseling sessions with his superiors had been to no avail.  In view of the applicant's lack of response to counseling and the charges, the headquarters concurred with the unit commander's recommendation that the individual be released for the good of the service.

9.  On 17 September 1971, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a UD Certificate be issued and that the applicant be reduced to pay grade E-1.

10.  The applicant was discharged on 13 October 1971 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable.  He was credited with 5 months and 8 days of net active service this period and 3 years, 10 months, and 7 days of total active service.

11.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, 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.  A UD was normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The evidence shows that during the applicant's third enlistment, he was charged with one specification of being in an area that was designated as off limits to all military personnel on 15 August 1971, one specification of knowing an unauthorized local national female was in the unit area on 15 August 1971, one specification of wrongfully possessing one vial of heroin on 15 August 1971, one specification of disposing of property of the U.S. Army on 15 August 1971, one specification of wrongfully appropriating the property of the 528th Maintenance Company on 15 August 1971, and one specification of transporting a female local national in his vehicle without valid authorization on 15 August 1971.

3.  The applicant voluntarily requested discharge in lieu of facing a court-martial; instead, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged and wrongfully discharged.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished a UD Certificate.

4.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded, and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  In the absence of information to the contrary, it is concluded that the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  The applicant's desire to have his discharge upgraded is acknowledged; however, the Board does not change the type of discharge an individual receives based on having received an honorable discharge from other enlistments.

7.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

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

9.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080012314



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ABCMR Record of Proceedings (cont)                                         AR20080012314



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