IN THE CASE OF:	  

		BOARD DATE:	       6 AUGUST 2009

		DOCKET NUMBER:  AR20090003260 


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, reconsideration of his earlier petition to upgrade his undesirable discharge (UD) to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that his UD should be upgraded to a GD because he was not afforded the opportunity to consult with legal counsel; he did not fully comprehend the nature and implications of the UD due his age and limited education; and because he was under cultural duress because of the Army's pressure to avoid a court martial at all cost.  He indicates his record shows two minor infractions and that with the exception of his period of being absent without leave (AWOL), his service was honest, faithful, and beneficial to the Army.  He states that after his discharge he became a mature, law-abiding citizen with constant employment.

3.  The applicant provides the following documents in support of his request:  self-authored statement, DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), Department of Veteran Affairs (VA) letter, Army Review Boards Agency (ARBA) letter, and Army Board for Correction of Military Records (ABCMR) letter and Record of Proceedings.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the ABCMR in Docket Number AR20080004579, on 29 May 2008.
2.  During its original review of this case, the Board determined that the applicant's separation under the provisions of chapter 10, Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), for the good of the service to avoid a trial by court-martial was administratively correct and in conformance with applicable regulations.  It further concluded that there was no evidence that the applicant's request for discharge was coerced or made under duress.  The Board further found the applicant's discharge request was made after he had appropriately consulted with a military lawyer, which shows he wished to avoid the court-martial and punitive discharge he may have received.  

3.  The applicant provides the new argument that he did not receive adequate legal counsel, he did not fully understand the implications of the discharge as a result of his young age and limited education, and the cultural duress to sign legal documents. 

4.  The applicant’s record shows he enlisted in the Regular Army (RA) and entered active duty on 31 January 1968, at the age of 18 years and 5 months.  He successfully completed basic combat training at Fort Leonard Wood, Missouri, and advanced individual training in military occupational specialty (MOS) 62E (Construction Machine Operator) at Fort Hood, Texas.  On 5 August 1968, he was awarded the primary MOS 62K (Grader Operator) and the secondary MOS 62M (Rough Terrain Forklift and Grader Operator).  

5.  The applicant's DA Form 20 (Enlisted Qualification Record) shows, in item 33 (Appointments and Reductions), that he was advanced to specialist four (SP4)/
E-4, on 20 February 1969, which is the highest rank/grade he attained and held while serving on active duty.  It also shows he was reduced to private first class (PFC)/E-3 on 14 April 1969 and to private (PV1)/E-1 on 17 May 1971.

6.  Item 31 (Foreign Service) of the applicant’s DA Form 20 shows he served in the Republic of Vietnam (RVN) from 8 October 1968 to 10 October 1969.  Item 41 (Awards and Decorations) shows that he earned the National Defense Service Medal, Vietnam Service Medal, RVN Campaign Medal with Device (1960), 2 Overseas Service Bars, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

7.  Item 44 (Time Lost) of the applicant’s DA Form 20 shows he accrued 502 days of time lost during three separate periods of AWOL between 10 November 1969 and 26 May 1971.  


8.  The applicant's disciplinary history shows he accepted 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:  17 July 1968, for being drunk and disorderly on or about 30 June 1968; and 14 April 1969, for assaulting another Soldier by choking him with his hands on or about 26 March 1969.

9.  On 16 April 1971, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ by being AWOL from on or about 10 November 1969 through on or about or about 23 March 1971.

10.  On 20 April 1971, 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 discharge, and of the procedures and rights that were available to him.  Subsequent to this counseling, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.

11.  In his request for discharge the applicant acknowledged his understanding 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also indicated that he understood he could face substantial prejudice in civilian life because of his UD and he elected not to submit a statement on his own behalf. 

12.  On 17 May 1971, the separation authority approved the applicant’s request for discharge and directed that he receive an UD under the provisions of chapter 10, Army Regulation 635-200.  On 26 May 1971, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms that he had completed a total of 1 year, 11 months, and 9 days of creditable active military service, and that he accrued a total of 502 days of time lost due to AWOL.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his UD within that board's 15-year statute of limitations.  He did apply to the ADRB on 19 January 2008; however, it was after the ADRB's statute of limitations had expired. 



14.  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 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 issuance of an UD was authorized.

15.  Army Regulation 635-200, paragraph 3-7b, provides that a GD 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 request for reconsideration of his request that his UD be upgraded to an HD because he was denied consultation with counsel, unable to fully comprehend the nature and implication of his discharge due to his age and limited education, and because he was under cultural duress was carefully considered.  However, there is insufficient evidence to support these claims. 

2.  The evidence of record confirms the applicant successfully completed both basic and advanced individual training, and satisfactorily served for more than a year and attained the rank of SP4 prior to committing any misconduct.  This clearly shows his maturity level and educational background was more than sufficient for him to succeed in the Army.  

3.  Further, the record confirms the applicant consulted with legal counsel and was fully advised of the basis for the contemplated court-martial action against him and of his rights in connection with that action, and that subsequent to receiving this legal counsel, he voluntarily requested discharge in order to avoid a trial by court-martial that could have resulted in his receiving a punitive discharge.  


4.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge and after consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  It further confirms that his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  As a result, there remains an insufficient evidentiary basis to support an upgrade of his discharge.  

5.  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 or that would support amendment of the original Board decision in this case. 

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 to amend the decision of the ABCMR set forth in Docket Number AR20080004579 dated 29 May 2008.



      ___________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)                                         AR20090003260



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ABCMR Record of Proceedings (cont)                                         AR20090003260



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