IN THE CASE OF:	

		BOARD DATE:	15 September 2009    

		DOCKET NUMBER:  AR20090007176 


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 honorable.

2.  The applicant states, in effect, that his discharge should be upgraded from other than honorable because he was unfairly represented.  He also states, in effect, he would like to receive medical help because of his health conditions. 

3.  The applicant provides no additional documentation 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 records show he enlisted in the Regular Army in pay grade E-1 on 17 August 1970, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 70A, Clerk.  He was advanced to pay grade E-2 on 17 December 1970.  He served in Vietnam from 4 February 1971 to 7 February 1972.

3.  On 22 March 1971, the applicant received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 4, 6, 7, and 14 March 1971.  The punishment imposed was a reduction to pay grade E-1, a forfeiture of $50.00 pay for two months, and 2 hours extra duty for 30 days.  In an attached statement, the applicant's commander stated that on 24 March 1971, the applicant was advised by counsel that the record of proceedings had to be conducted in writing; therefore, the applicant refused to sign the proceedings.  On 27 March 1971, the applicant was advised that even though procedural provisions are not followed the punishment imposed under Article 15 is still valid; however, after the applicant was advised of this, he still refused to sign the record of proceedings.  

4.  On 6 July 1971, the applicant accepted non-judicial punishment under Article 15, UCMJ, for absenting himself from his place of duty on 3 and 4 July 1971.  The punishment imposed was a forfeiture of $70.00 pay for one month and       30 days extra duty.  He elected not to appeal the punishment.

5.  On 12 August 1971, a DD Form 458 (Charge Sheet) was prepared by the Commander, 605th Transportation Company, 520th Transportation Battalion, 34th General Support Group.  The applicant was charged with absence without leave (AWOL) from 6 to 9 August 1971, placing a fellow in fear by means of force and violence and stealing that Soldier's property on 5 August 1971, AWOL from 14 to 15 August 1971, breaking restriction on 14 August 1971, wrongful possession of a false pass, unlawfully striking a fellow Soldier in the face with   his fist, and wrongfully communicating to a fellow Soldier a threat to kill him on  31 August 1971.

6.  On 20 September 1971, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under other than 
honorable conditions and furnished a UD Certificate; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.
7.  On 2 October 1971, the applicant's unit commander recommended approval of the applicant's request.  The unit commander stated that the applicant allegedly assaulted a man on 14 February 1971 and the charges were subsequently dropped. On 28 March 1971, the applicant was reassigned on a rehabilitative transfer basis.  On 5 August 1971, the applicant was allegedly involved in a robbery, reported AWOL, and returned to duty on 9 August 1971.  Before charges could be preferred the applicant went AWOL again.  The applicant returned on 11 August 1971 and charges were preferred.  He requested to be seen by a doctor because he felt he had malaria or hepatitis.  On 15 August 1971, the applicant was placed on quarters for strep throat and constitutional symptoms (suspected drug abuse).  By noon he again went AWOL and was picked up by the military police for being AWOL, riding in an unauthorized vehicle, and possessing an unauthorized pass.  On 31 August 1971, the applicant allegedly struck a man and threatened to take his life.  He was placed in pretrial confinement for that incident.  The unit commander further stated that due to the applicant's complete disregard for the law, his failure to report for duty, frequent AWOL, and belligerent attitude, he was strongly recommending that he be issued a UD Certificate.

8.  On 2 October 1971, the applicant's battalion commander recommended approval of the applicant's request and recommended the issuance of a UD Certificate.

9.  On 8 October 1971, the Acting Commander, Headquarters, Area Command, recommended approval of the applicant's request and recommended the issuance of a UD Certificate.

10.  All of the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a DD Form 214 that shows he was discharged on 29 October 1971 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under conditions other than honorable.  He was issued a UD Certificate.  He was credited with 1 year, 2 months, and 9 days of net active service.

11.  On 12 August 1977, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  On 12 December 1978, the applicant was advised that a recent court order had directed that individuals with cases last reviewed before 31 March 1978 had the right to request and receive an entirely new review of their case under the Special Discharge Review Program.  He was also provided instructions for requesting this review.  There is no indication that the applicant applied for a new review of his case.
13.  Army Regulation 635-200 sets forth the basic authority for 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.  At the time, a UD was normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally meets the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The evidence shows the applicant was punished under Article 15 for failing to go at the time prescribed to his appointed place of duty on 4, 6, 7, and 14 March 1971.  He was also charged with being AWOL from 6 to 9 August 1971 and from 
14 to 15 August 1971, stealing the property of a fellow Soldier by means of force and violence placing that Soldier in fear, breaking restriction, wrongful possession of a false pass, and unlawfully striking a fellow Soldier in the face with his fist and wrongfully communicating to a fellow Soldier a threat to kill him.  The applicant voluntarily requested discharge in lieu of trial by court-martial and waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  The applicant also acknowledged he could be discharged under conditions other than honorable and furnished a UD Certificate. In recommending the approval of applicant's request, his unit commander provided a brief synopsis of the applicant's misconduct and stated that he was making the recommendation based on the applicant's complete disregard for the law, his failure to report for duty, frequent AWOL, and belligerent attitude.  

3.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting either a fully honorable or a general discharge.

4.  In the absence of evidence to the contrary, it appears the applicant’s administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090007176



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ABCMR Record of Proceedings (cont)                                         AR20090007176



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