IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090009379 


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 upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that his first nonjudicial punishment (NJP) was not his fault.  He goes on to state that he is requesting an upgrade of his discharge because he feels that he served honorably and fought for his country in Vietnam.  He goes on to state that he has two children and wants to provide them with a better life and use his Department of Veterans Affairs (VA) entitlements.

3.  The applicant provides a self-authored letter, dated 13 May 2009, explaining 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 enlisted in the Regular Army (RA) in Portland, OR on 20 February 1968 for a period of 3 years.  He completed his basic training at Fort Lewis, WA and his advanced individual training as a field wireman at Fort Ord, CA before being transferred to Vietnam on 21 September 1969.

3.  The applicant was initially assigned as a wireman in an artillery battery and on 11 February 1970, his duties were changed to a switchboard operator. NJP was imposed against the applicant on at least two occasions while in Vietnam for failure to report to guard duty and sleeping on guard duty.

4.  The applicant departed Vietnam on 20 September 1970 for assignment to Germany.  He arrived in Baumholder, Germany on 16 November 1970.

5.  On 28 December 1970, NJP was imposed against him for throwing a coke bottle from one barracks to another and breaking a window.

6.  On 5 March 1971, he went absent without leave (AWOL) and remained absent until he returned to military control on 4 May 1971.  As a result, a court-martial charge was preferred against him for the AWOL offense.

7.  On 27 May 1971, after consulting with defense counsel, the applicant submitted a voluntary request for discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request.  He acknowledged that he understood that he could receive a discharge under conditions other than honorable and issued an Undesirable Discharge Certificate.  He also understood that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

8.  On 3 June 1971, the appropriate authority (a brigadier general) approved his request and directed that he be furnished an Undesirable Discharge Certificate.

9.  Accordingly, he was discharged on 22 June 1971 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, with an undesirable discharge.  He had served 2 years, 2 months, and 2 days of total active service and he had 60 days of lost time due to AWOL.


10.  On 1 February 1973, while incarcerated in Washington State for burglary (2d degree), he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  He contended at that time that he had served honorably in Vietnam and because the Army did not give him the dental treatment he needed, his discharge should be upgraded.  After carefully reviewing the available records, the ADRB determined that his discharge was both proper and equitable and on 24 August 1973, the ADRB denied his request.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An undesirable discharge certificate would normally be furnished an individual who was discharged for the good of the Service.  

12.  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.  

13.  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's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  The applicant's contentions and supporting documents have been considered. However, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct and his overall record of service.  His service simply does not rise to the level of even a general discharge.

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)                                         AR20090009379



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090009379



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1