IN THE CASE OF:	

		BOARD DATE:	11 August 2009    

		DOCKET NUMBER:  AR20090005678 


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 undesirable discharge.

2.  The applicant states that he was unfairly discharged without a court-martial for a mistake that he made at 18 years of age.  He further states he made a mistake and has paid for it for over 37 years.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 he was born on 31 August 1952 and enlisted in the Regular Army (RA) at nearly 18 years of age for a period of 3 years on 10 August 1970.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  The highest rank/grade the applicant attained during his military service was private (PV2)/E-2.

3.  The applicant’s records also show he served in the Republic of Vietnam for an unknown period as his dates of departure to and return from the Republic of Vietnam cannot be determined.  Additionally, his records also show he was awarded the National Defense Service Medal and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

4.  On 20 November 1970, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $33.00 pay.

5.  On 24 January 1971, the applicant was arrested by civil authorities in Tampa, FL, for a civilian offense.  However, the charge was later dismissed.

6.  Item 44 (Time Lost) of the applicant's DA Form 20 (Enlisted Qualification Record) shows he was in an absent without leave (AWOL) status from
17-19  May 1971.

7.  On 30 May 1971, court-martial charges were preferred against the applicant for one specification of being disrespectful in language toward a superior noncommissioned officer (NCO) on or about 12 May 1971; one specification of disobeying a lawful order from a superior NCO on or about 12 May 1971; one specification of failing to obey a regulation by wrongfully having a fragmentation grenade in his possession on or about 25 April 1971; one specification of being drunk on station on or about 12 May 1971; two specifications of wrongfully discharging a firearm under circumstances such as to endanger human life on or about 22 May 1971; and one specification of wrongfully communicating a threat to kill another Soldier on or about 22 May 1971.

8.  A complete copy of the applicant's request for discharge is not available for review with this case.  However, the applicant would have consulted with legal counsel and would have been advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or an undesirable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights 
that were available to him.  Following consultation with legal counsel, he would have voluntarily and without coercion requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  

9.  On an unknown date in 1971, the applicant's immediate commander recommended approval of the applicant’s discharge for the good of the service and indicated that his discharge was in the best interest of the Army and that he had been a habitual disciplinary problem.

10.  On 9 July 1971, the applicant’s intermediate commander also recommended approval and indicated that the applicant's discharge was in the best interest of the Army.  He further recommended the issuance of an Undesirable Discharge Certificate. 

11.  On 25 July 1971, Headquarters, 1st Infantry Brigade, 5th Infantry Division, published Special Orders Number 206 directing the applicant's discharge from the Army under the provisions of chapter 10 of Army Regulation 635-200.  A copy of the separation authority's approval endorsement is not available for review with this case.

12.  On 29 July 1971, the applicant was accordingly discharged.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial in the rank/grade of private (PVT)/E-1 with an undesirable discharge, with service characterized as under other than honorable conditions.  This form further confirms the applicant had completed a total of
11 months and 17 days of creditable active military service and he had 3 days of lost time.

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

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 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, at the time an undesirable discharge was normally considered appropriate.
15.  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.

16.  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 contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was nearly 18 years of age at the time he enlisted and committed his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  There is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his misconduct and/or indiscipline were the result of his age.  Furthermore, the ABCMR does not grant discharge upgrades solely based on the passage of time.

3.  The evidence of record shows that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200 required the applicant to voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  He was not court-martialed because he requested and received a discharge in lieu of a court-martial.

4.  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.  The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge accurately reflects his overall record of service.



5.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090005678



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ABCMR Record of Proceedings (cont)                                         AR20090005678



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