IN THE CASE OF:	  

		BOARD DATE:	        16 JUNE 2009

		DOCKET NUMBER:  AR20090003273 


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 to an honorable discharge (HD).

2.  The applicant states, in effect, that he completed a tour in the Republic of  Vietnam (RVN) even though the natives did not want them there.  He also states that upon returning from the RVN, the people from his country did not welcome the Soldiers back and he felt unwelcomed in his own home.  He further states that since his discharge, he has worked hard, paid his taxes, been a law abiding citizen, owned his home for 34 years, and is a dependable family man.

3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), DD Form 737 (Immunization Certificate), a character reference statement, and his marriage license 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 military record shows he enlisted in the Regular Army and entered active duty on 20 August 1968.  He completed basic combat training at Fort Bliss, Texas, and advanced individual training (AIT) at Fort McClellan, Alabama.  Upon completion of AIT, he was awarded military occupational specialty (MOS) 54D (Chemical Equipment Repairman).

3.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was promoted to the rank of specialist four (SP4) on 5 November 1969, and that this was the highest rank he held while serving on active duty.  It also shows he was reduced in rank on four separate occasions, the last on 8 May 1971, when he was reduced to private/E-1 (PV1). 

4.  Item 44 (Time Lost) of the applicant's DA Form 20 shows that he was absent without leave (AWOL) from 17 July 1970 through 4 August 1970 and from 
26 September 1970 through 14 March 1971; and that he was in military confinement from 3 through 24 September 1970 and from 23 March through 
11 May 1971.  

5.  The applicant’s record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following five separate occasions for the offenses indicated:  30 December 1968, for failing to go at the time prescribed to his appointed place of duty; 9 January 1969, for failing to go at the time prescribed to his appointed place of duty and for twice breaking restriction; 30 June 1969, for being AWOL from 26 through 29 June 1970; 2 July 1970, for three specifications of failing to go at the time prescribed to his appointed place of duty; and 8 July 1980, for failing to go at the time prescribed to his appointed place of duty and breaking restriction.

6.  A DA Form 20B (Insert Sheet to DA Form 20B - Record of Court-Martial Conviction) shows that on 21 March 1969, a Special Court-Martial (SPCM) found the applicant guilty of violating Article 113 of the UCMJ by being asleep on guard duty on 1 March 1969.  The resultant sentence was a reduction to private/E-2 (PV2) and a forfeiture of $40.00 per month for 3 months.

7.  The DA Form 20B also shows a Summary Court Martial (SCM) found the applicant guilty of violating Article 86 of the UCMJ by being AWOL from 17 July to 5 August 1970 and from 17 to 18 August 1970.  The resultant sentence was a reduction to private/E-1 (PV1), a forfeiture of $118.00 and confinement at hard labor for 30 days.

8.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly constituted DD Form 214 that shows he was discharged under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court martial.

9.  The applicant’s DD Form 214 also confirms he was discharged on 14 May 1971, after completing a total of 2 years, 1 month and 23 days of creditable active military service and accruing 212 days of time lost due to AWOL and confinement.  It also confirms he received an UD.

10.  The applicant's record is void of any indication that he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  The applicant provides a character reference statement from his spouse in which she indicates that since his discharge from the Army, the applicant has overcome adversities, possibly resulting from his RVN service, to become a dependable family man who has worked hard on the same job for over 30 years. She also agrees with the applicant’s contentions and supports his request for an upgrade of his discharge.

12.  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.  The separation authority may issue a general, under honorable conditions discharge (GD) or HD if warranted by the member's overall record of service; however, a discharge under other than honorable conditions is normally considered appropriate.  At the time of the applicant's discharge, the issuance of a UD was authorized.

13.  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.

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.  The applicant’s contention that his UD should be upgraded to an honorable discharge based on his overall record of service and his post service conduct has been carefully considered.  However, these factors are not sufficiently mitigating to support the requested relief. 

2.  The applicant’s record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly constituted DD Form 214 that identifies the reason and characterization of the applicant’s discharge.  This document confirms the applicant was discharged under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, and that he received an UD.  This separation document carries with it a presumption of Government regularity in the separation process. 

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel, and to voluntarily request separation from the Army in lieu of trial by court-martial.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The UD the applicant received was normal and appropriate under the regulatory guidance.

4.   The applicant's post service conduct and accomplishments are noteworthy; however, given his extensive disciplinary history, this factor alone is not sufficiently mitigating to support an upgrade of his discharge.  His record reveals an extensive disciplinary history, which includes his acceptance of NJP on five separate occasions, his convictions by SPCM and SCM, and his accrual of     212 days of time lost due to AWOL and confinement.  As a result, his overall record of service clearly did not support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this late date.  

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 failed to submit evidence that would satisfy this requirement.

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)                                         AR20090003273



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ABCMR Record of Proceedings (cont)                                         AR20090003273



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