BOARD DATE:	  1 October 2009

		DOCKET NUMBER:  AR20090008022 


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 under other than honorable conditions discharge.

2.  The applicant states, in effect, that the character of his service was improper and that based on his records, he was a good Soldier, with no record of being absent without leave, being disrespectful towards others, or any other bad conduct.  He adds that a very small amount of marijuana was found in the pocket of another Soldier when a lieutenant asked him and the other Soldier to empty their pockets as they were walking in a camp in Korea.  He also adds that on the same day, he had requested a transfer from his unit back to the United States.  When he returned to the barracks, he and another Soldier got into a fight.  He was then told to pack his belongings and he was transferred out with an under other than honorable conditions discharge.  He states that although he had two instances of nonjudicial punishment, his overall conduct and efficiency were good and he was close to finishing up his enlistment commitment.  He also states that under current standards he would not have received the type of discharge that he has.  He believes that it is an injustice for him to continue to suffer the consequences of an under other than honorable conditions discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 20 February 1973; a copy of a letter, dated 29 June 2006, from the Department of Veterans Affairs; and a copy of a certificate of adult education, dated 17 February 1999, in support of his application.

COUNSEL'S REQUEST, STATEMENT, AND EVIDENCE:

1.  Counsel requests an upgrade of the applicant's discharge to honorable.

2.  Counsel states that the applicant's discharge, in effect, should be upgraded.  Counsel states the applicant has submitted a statement attesting to the injustices he experienced during his period of military service.

3.  Counsel did not provide any additional documentary evidence in support of the applicant's 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 inducted into the Army of the United States and entered active duty on 27 April 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  The highest rank/grade he attained during his military service was private (PV2)/E-2. 

3.  The applicant's records also show he served in Korea from on or about 2 October 1972 to 19 February 1973.  He was assigned to the 1st Battalion, 31st Infantry, 2nd Infantry Division.

4.  The applicant's records further show he was awarded the National Defense Service Medal, the Armed Forces Expeditionary Medal, the Expert Marksmanship Qualification Badge with Grenade Bar, the Marksman Marksmanship Qualification Badge with Rifle and Machinegun Bars, and the Sharpshooter Marksmanship Qualification Badge with Grenade Launcher Bar.


5.  The applicant’s records contain a copy of a U.S. Army Criminal Investigation Division Command (USACIDC) Report of Investigation, dated 4 January 1973, which shows the applicant wrongfully possessed marijuana.  The USACIDC investigation disclosed that, on 30 December 1972, the applicant and another Soldier were found to be in possession of marijuana.  

6.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged, on 20 February 1973, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions.  This form also shows he completed a total of 9 months and 24 days of creditable active service.

7.  On 1 August 1983, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.  

8.  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, an under other than honorable conditions discharge is normally considered appropriate.

9.  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.

10.  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 under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged, on 20 February 1973, under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of chapter 10, 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.  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, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant’s service in Korea and his multiple awards were considered.  However, they are not sufficiently mitigating to grant him the requested relief.  There is no evidence in the available records nor did the applicant provide documentation to warrant an upgrade of his discharge.

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)                                         AR20090008022



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008022



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1