IN THE CASE OF:	

		BOARD DATE:	  27 January 2009

		DOCKET NUMBER:  AR20080017350 


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, correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his service number as US 5* *** **8 instead of US 5* *** **0, and to show his expert rifle medal [correctly known as the Expert Marksmanship Qualification Badge with Rifle Bar].  He also requests that his discharge under other than honorable conditions be upgraded to fully honorable.

2.  The applicant states, in effect, that he believes the service number is incorrect due to a typographical error and that his exposure to drugs and alcohol in Vietnam led to his getting into trouble once he returned stateside.  He states that alcohol, drugs, and Post Traumatic Stress Syndrome caused him to "lose it" and be absent without leave.  He states he hasn't been in trouble with the law since he was released from the military.

3.  The applicant provides his DD Form 214 in support of this 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 induction documents show he was inducted into the Army of the United States on 8 January 1968.  He completed basic combat and advanced individual training and was awarded the military occupational specialty of cook.  The highest rank he attained while serving on active duty was private/pay grade E-2.  He served in Vietnam during the period 21 June 1968 through 21 June 1969.

3.  The applicant's induction order and DD Form 47 (Record of Induction) show his service number as US 5* *** **8.  Other available personnel documents utilize the applicant's social security number as an identification number. 

4.  The available records do not show any significant acts of achievement or valor during his military service.  
	
5.  The available records do not contain any orders for award of the Expert Marksmanship Qualification Badge with Rifle Bar and the applicant’s DA Form 20 (Enlisted Qualification Record) does not show the applicant is authorized this award.

6.  On 12 June 1969, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for operating a vehicle while drunk in a reckless manner and resisting apprehension by an armed forces policeman on 9 June 1969.

7.  The applicant was absent without leave during the period 3 October 1969 through 21 June 1970.  The applicant’s charge sheet and discharge approval document are not contained in the available record.  However, a 1AA Form 515 (Transmittal of Court-Martial Charges), dated 6 July 1970, show that court-martial charges were preferred against the applicant and the Commanding Officer, Special Processing Detachment, Fort George G. Meade, Maryland transmitted the court-martial charges to the Commanding Officer, Special Processing Battalion, Fort George G. Meade.  

8.  On 8 July 1970, the applicant voluntarily requested discharge for the good of the service under provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In his request for discharge, the applicant acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to it.  He acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice.

9.  The applicant acknowledged that he understood if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that he would be deprived of many or all Army benefits; that he could be ineligible for many or all benefits administered by the Veterans Administration; and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  The applicant's charge sheet and discharge approval are not contained in his records.  However, on 27 July 1970, the applicant was discharged with a characterization of service of under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The DD Form 214 the applicant was issued confirms he completed a total of 
1 year, 9 months, and 20 days of creditable active service with 280 days of lost time due to being absent without leave and confinement.  This document further shows that the applicant was issued a DD Form 258A (Undesirable Discharge Certificate).

11.  The DD Form 214 the applicant was issued contains the service number 
US 5* *** **0.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative 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 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 discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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 only available documents besides the DD Form 214 that show the applicant's service number are his induction documents.  Since these documents existed prior to the DD Form 214, it would appear that the individual entering the applicant's information on his DD Form 214 mistyped the applicant's service number.

2.  As such, it would be appropriate to correct the applicant's records to show his service number as US 5* *** **8 as shown on his induction documents. 

3.  The available evidence does not support that the applicant was awarded the Expert Marksmanship Qualification Badge with Rifle Bar.  There are no orders available and the applicant’s DA Form 20 does not show that he was authorized this award.  Therefore, there is no basis for adding this award to his DD Form 214.

4.  While the applicant's charge sheet and discharge approval document are not contained in his record, the available evidence show that charges were preferred against the applicant, and he consulted with legal counsel and voluntarily requested discharge under the provisions of chapter 10, Army Regulation 
635-200, for the good of the service in lieu of trial by court-martial.  The available evidence also show that he acknowledged he could receive an under other than honorable discharge.  In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with.  In the absence of evidence to the contrary, regularity must be presumed in this case.

5.  The applicant's records also show that he had 280 days of lost time due to being absent without leave and in confinement.  Based on this 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, he is not entitled to either a general or an honorable discharge.
6.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___X____  ___X____  ___X___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that Department of the Army records of the individual concerned be corrected by showing his service number on his DD Form 214 as US 5* *** **8.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to awarding him an Expert Marksmanship Qualification Badge and upgrading of his undesirable discharge to an honorable discharge.




      __________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)                                         AR20080017350



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ABCMR Record of Proceedings (cont)                                         AR20080017350



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