IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080015194 


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 dishonorable discharge, in effect, his undesirable discharge.  

2.  The applicant states, in effect, that he served in the Army as an infantryman from 4 July 1969 to 10 October 1970 and that he was shipped to Vietnam in January 1970 where he fought as an ammunition carrier for an M-60 Machine-gunner.  When the gunner was injured, he took his responsibilities for a short period.  He adds that in January 1970, he was informed that he had to serve 
6 months fighting and that the last 6 months would be in the rear.  However, as of 30 June 1970, he was still on the front line and continued until October 1970, 
4 months after his combat duty should have ended.  He also adds that being under severe stress and failing mental and emotional health, he was advised at the time that the only way he could be separated was to be dishonorably discharged, despite the fact that he had been in combat for 10 months.  He concludes that he was never afforded any other options concerning alternative duty assignments and that under the circumstances he does not believe the type of discharge he received was warranted.

3.  The applicant did not provide any additional 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 records show that he was inducted into the Army of the United States on 3 June 1969.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he served in the Republic of Vietnam from 10 January to 13 October 1970.  His records further show he was awarded the National Defense Service Medal, the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with “1960-Device.” 

4.  On 28 July 1970, the applicant pled guilty to one specification of disobeying a lawful order from a superior noncommissioned officer (NCO) to accompany the platoon to a fire support base, on or about 4 July 1970; one specification of disobeying a lawful order from a superior NCO to report for the purpose of boarding a convoy, on or about 10 July 1970; and one specification of failing to obey a lawful general regulation, by being in Saigon without written orders, on or about 13 July 1970.  He also pled not guilty to one specification of disobeying a lawful order from a superior NCO, to report to the battalion mess hall for duties on or about 15 July 1970.  The Court found him guilty and/or not guilty in accordance with his pleas and sentenced him to confinement at hard labor for one month, a forfeiture of $50.00 pay per month for 3 months, and reduction to private (PVT)/E-1.  The sentence was adjudged on 28 July 1970 and approved on 16 August 1970.  





5.  On 12 September 1970, court-martial charges were preferred against the applicant for one specification of disobeying a lawful order from a superior NCO to report to the company orderly room with field gear and weapon for transportation to join combat operations, on or about 11 September 1970, and one specification of disobeying a lawful order from his company first sergeant (1SG) to work on the detail of removing the grass from around the company orderly room, on or about 12 September 1970.  

6.  On 17 September 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 a discharge under other than honorable conditions; the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  

7.  On 20 September 1970, following consultation with legal counsel, the applicant 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).  In his request for discharge, he indicated that he understood that 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. 

8.  On 28 September 1970, on behalf of the applicant’s immediate commander, the applicant’s 1SG recommended disapproval of the discharge under the provisions of chapter 10 of AR 635-200.  The 1SG further remarked that the applicant failed to meet standards of the unit only because he wanted to take the easy way out of his obligations to his country and his fellow men and that approval of the request would be doing the applicant an injustice in that throughout the rest of his life, he would continue to try to take the easy way out.  The 1SG further remarked that if the request were approved, the unit commander desired the applicant be separated with an Undesirable Discharge Certificate.  

9.  On 1 October 1970, the applicant’s intermediate commander concurred with the applicant’s 1SG’s remarks and recommended the applicant be court-martialed and if found guilty, be confined.  

10.  On 5 October 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.  The applicant was accordingly discharged on 3 July 1969.  The DD Form 214 he was issued shows he was discharged for the good of the service, under the provisions of chapter 10 of AR 635-200 with an Undesirable Discharge Certificate.  He had completed 1 year, 2 months, and 24 days of creditable military service and he had 18 days of lost time. 

11.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s        15-year statute of limitations. 

12.  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, an undesirable discharge was considered appropriate at the time.

13.  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.

14.  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’s contention that he was promised 6 months of combat service and 6 months in the rear was considered; however, it was found without merit. There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows his tours of duty was any different than that of other Soldiers who successfully completed their tour of duty in the Republic of Vietnam.  Even if any promises were made to him, he had many legitimate avenues through which he could have addressed his concerns, had he chosen to use them.

2.  The applicant’s contention that he was under severe stress with failing mental and emotional health was also considered; however, it was also found without merit.  The applicant’s records reveal a pattern of disobeying orders in a combat environment as evidenced by his special court-martial on 28 July 1970 and the preferred court-martial charges on 12 September 1970.  

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.  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 has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did 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

___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.



															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)                                         AR20080015194



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080015194



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1