BOARD DATE:	  8 October 2009

		DOCKET NUMBER:  AR20090008663 


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 discharge to an honorable discharge.

2.  The applicant states that he already has an honorable discharge for his first enlistment, but his second discharge was undesirable.  He adds that at 18 years of age he volunteered to go to Vietnam and extended his tour by 8 months.  He later developed a drug problem but did not receive the proper treatment and got into trouble.  He feels that if he had received the proper treatment, such as counseling, he would have been fine.  He concludes that he loves his country and that it is a matter of pride that his discharge gets upgraded.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 28 June 1973; a copy of his National Archives and Records Administration Form 13038 (Certification of Military Service), dated 25 March 2009; a letter from the City and County of Honolulu, HI, dated 22 June 2007; a copy of a letter from "America's Most Wanted," dated 25 June 2006; copies of two letters of recognition; a copy of a certificate of appreciation, dated 26 October 1999; and a copy of his performance evaluation, dated 10 May 1999, 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 29 April 1952 and initially enlisted in the Regular Army (RA) at nearly 18 years of age on 17 March 1970.  He completed basic combat and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).  It appears that he was discharged on 24 November 1973 for the purpose of immediate reenlistment and executed a 3-year reenlistment in the RA on 25 November 1970.  The highest rank/grade the applicant attained during his military service was private first class/E-3.

3.  On 9 December 1971, the applicant pled guilty at a special court-martial to one specification of being absent without leave (AWOL) during the period on or about 15 January 1971 until on or about 17 February 1971.  The court sentenced him to a forfeiture of $150.00 pay for 3 months and a reduction to private (PVT)/E-1.  The sentence was adjudged on 9 December 1971 and was approved on 4 January 1972.

4.  On 27 June 1972, the applicant again pled guilty at a special court-martial to three specifications of being AWOL during the periods on or about 19 April 1972 until on or about 16 May 1972, on or about 8 February 1972 until on or about 11 April 1972, and on or about 3 January 1972 until on or about 1 February 1972. 
The court sentenced him to confinement at hard labor for 4 months and a forfeiture of $100.00 pay for 4 months.  The sentence was adjudged on 27 June 1972 and was approved on 30 June 1972.

5.  The applicant's records reveal an extensive history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 27 November 1972, for being AWOL during the period on or about 17 November 1972 until on or about 22 November 1972.  His punishment consisted of 14 days of extra duty and 14 days of restriction;

	b.  on 16 January 1973, for  being AWOL during the period on or about 10 January 1973 until on or about 12 January 1973.  His punishment consisted of a forfeiture of $50.00 pay, 14 days of extra duty, and 14 days of restriction.  He appealed his punishment on 24 January 1973; however, his appeal was denied by the next superior authority on 2 February 1973;

	c.  on 7 March 1973, for disobeying a lawful order on or about 2 March 1973.  His punishment consisted of 14 days of extra duty and 14 days of restriction; and

	d.  on 26 March 1973, for twice failing to go at the time prescribed to his appointed place of duty on or about 22 and 23 March 1973.  His punishment consisted of 14 days of extra duty.

6.  On 26 April 1973, the applicant was a suspect in a U.S. Army Criminal Investigation Command investigation of housebreaking and larceny which took place at Fort Campbell, KY, on 23 April 1972.

7.  On 27 April 1973, court-martial charges were preferred against the applicant for one specification of stealing a stereo from another Soldier on or about 23 April 1973 and one specification of unlawfully entering another Soldier's room with intent to commit a criminal offense on or about 23 April 1973.

8.  On 2 May 1973, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, 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 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).

9.  In his request for discharge, the applicant acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He indicated that statements in his own behalf were submitted with his request; however, his records do not contain copies of any statements.

10.  On an unknown date between 3 May 1973 and 20 June 1973, the applicant's immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an Undesirable Discharge Certificate.

11.  On 20 June 1973, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate.  On 28 June 1973, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows that he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 1 year and 9 months of creditable active military service and had 560 days of lost time.

12.  On 23 July 1975, 23 August 1982, and 11 October 1983, the Army Discharge Review Board denied the applicant's petitions for an upgrade of his discharge.

13.  There is no indication in the applicant's records that he volunteered for service in the Republic of Vietnam or that he served in Vietnam.  Additionally, there is no indication in the applicant's records that he used drugs, failed a urinalysis, or was punished for drug abuse.

14.  The applicant submitted copies of various letters of recognition, certificates of appreciation, and a performance evaluation report to highlight his positive accomplishments subsequent to his discharge.  In one letter, the City and County of Honolulu, HI, extended its appreciation for his assistance in prosecuting a person of interest.  In another letter, the host of "America's Most Wanted" also extended his appreciation for his assistance in one of the cases.  He also provided a copy of his performance evaluation as a contractor that shows an outstanding rating.

15.  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, a discharge under other than honorable conditions is normally considered appropriate.

16.  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.

17.  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 the applicant was nearly 18 years of age at the time of his enlistment, 19 years of age at the time of his first court-martial, 20 years of age at the time of his second court-martial, and 21 years of age at the time of his multiple instances of NJP.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service or that his extensive history of misconduct was a result of his age.

3.  There is no evidence in the applicant's records that he volunteered for service in the Republic of Vietnam or that he served in Vietnam.  Additionally, there is no indication in the applicant's records that he used drugs, failed a urinalysis, or was punished for drug abuse.  Furthermore, the applicant's post-service accomplishments and positive contributions are noted.  However, they are not sufficiently mitigating in granting him the requested relief.

4.  The applicant's record shows he 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 applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  There is no evidence in the available records, nor did the applicant provide documentation to warrant an upgrade of his discharge.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 that requirement.

6.  Based on his extensive record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general, under honorable conditions discharge or an honorable discharge.

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)                                         AR20090008663



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ABCMR Record of Proceedings (cont)                                         AR20090008663



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