IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008863 


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, an upgrade of his general discharge (GD) under honorable conditions to an honorable discharge (HD).   

2.  The applicant states, in effect, he served faithfully, including service in the Republic of Vietnam (RVN) and Germany.   

3.  The applicant provides no additional documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 15 November 1966.  He was trained in and served in military occupational specialty (MOS) 76A (Supply Clerk) on 17 March 1967, and was later awarded MOS 76P (Stock Control and Accounting Specialist) on 
25 February 1967.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows he served in Germany for 6 months and in the RVN from 28 September 1968 through 
27 September 1969.  Item 38 (Record of Assignments) shows that during his RVN tour, he was assigned to the Supply Company, 15th Supply and Service Battalion, 1st Cavalry Division, performing duties in MOS 76P as a supply clerk and stock control and accounting specialist. 

4.  The applicant's record shows he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Army Commendation Medal (ARCOM), Vietnam Service Medal with 4 bronze service stars, RVN Campaign Medal with 60 Device, Meritorious Unit Commendation, RVN Gallantry Cross with Palm Unit Citation, and Expert Marksmanship Qualification Badge with Rifle Bar.  

5.  The applicant's record also confirms that he accrued 110 days of lost time during six separate periods of being absent without leave (AWOL) between 
1 July 1967 and 7 June 1970, and two separate periods of confinement between 10 November 1967 and 10 June 1970.  His disciplinary history 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 four separate occasions for the offenses indicated:  15 July 1967, for being AWOL from 
1 through 7 July 1967; 23 January 1968, for being AWOL from 19 through 
21 January 1968; 15 May 1968, for violating a lawful general regulation on or about 16 April 1968; and 8 June 1968, for being AWOL from 1 through 2 June 1968.  It also includes a 16 January 1968 Summary Court-Martial (SCM) conviction for two specifications of violating Article 86 of the UCMJ by being AWOL from 16 September through 12 October 1967, and from 2 through 
10 November 1967.  

6.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows the applicant was separated under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial on 2 July 1970, and that he received an under other than honorable conditions (UOTHC) discharge.  It further shows that at the time, he had completed a total of 2 years, 9 months, and 6 days of creditable active military service and he had accrued 110 days of lost time due to being AWOL and in confinement. 

7.  On 2 March 1978, the Army Discharge Review Board (ADRB) reviewed the applicant's case and voted to upgrade his UOTHC discharge to GD under honorable conditions under the provisions of the Special Discharge Review Program (SDRP), and on 5 April 1978, the applicant was issued a new DD Form 214.  On 31 July 1978, the ADRB affirmed the original upgrade of the applicant's GD under the provisions of Public Law 95-126 and a DD Form 215 (Correction to DD Form 214) was published documenting this decision. 

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, 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 direct issue of a GD if such is merited by the Soldier's overall record during the current enlistment.  An honorable discharge (HD) is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.  An UOTHC discharge is normally appropriate for a Soldier who is discharged under the provisions of chapter 10.  

9.  Paragraph 3-7a of the same regulation provides that an HD 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.  Paragraph 3-7b provides that a GD 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 GD should be upgraded to an HD based on his faithful service, which included service in Germany and the RVN, was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant’s final discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant’s final discharge.  Therefore, Government regularity in the discharge process is presumed. 

3.  The applicant’s separation document confirms he was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by 
court-martial.  In connection with such a discharge, he 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.  Absent 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. 

4.  The evidence of record confirms that in recognition of his overall record of service, which included combat service in the RVN, the ADRB upgraded the applicant's original UOTHC discharge to a GD under the provisions of the SDRP, and that it affirmed this decision and the GD under Public Law 95-126.  However, while his service supported this upgrade, his record reveals a disciplinary history that includes his acceptance of NJP on four separate occasions, his conviction by a SCM, and his accrual of 110 days of time lost due to AWOL and confinement.  This extensive record of misconduct clearly diminished the quality of his service below that meriting a fully honorable discharge.  Therefore, his overall record of service is not sufficiently meritorious to support a further upgrade of his discharge to an HD at this time.  

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 has 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.



      _______ _   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)                                         AR20090008863



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ABCMR Record of Proceedings (cont)                                         AR20090008863



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