IN THE CASE OF:	  

		BOARD DATE:	  9 March 2010

		DOCKET NUMBER:  AR20090009773 


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, upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states, in effect, he went absent without leave (AWOL) because his wife was sleeping with an officer and after he caught them together, he was not going to serve with such an officer.  He indicates his record was spotless until this incident.  He also states he received the Army Good Conduct Medal.

3.  The applicant provides, in support of his application, a DD Form 4 (Enlistment Contract - Armed Forces of the United States), dated 4 March 1972; two DA Forms 2166-5 (Enlisted Evaluation Report), for the periods ending November 1976 and September 1977; and a DA Form 1695 (Oath of Extension of Enlistment), dated 2 July 1975.

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 was initially inducted into the Army of the United States and entered active duty on 16 March 1971.  He was trained in and awarded military occupational specialty (MOS) 64B (Light Vehicle Driver).  It further shows that on 30 March 1972 he enlisted in the Regular Army (RA) for
6 years and on 2 July 1975 he extended this 6-year enlistment by 12 months.  His record is void of a DD Form 214 (Report of Separation from Active Duty) covering his first period of active duty service from 16 March 1971 through
29 March 1972.

3.  The applicant's record shows he completed 3 months of service in the Republic of Vietnam (RVN) and completed an overseas tour in Hawaii.  It also shows that during his active duty tenure, he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), Army Good Conduct Medal (AGCM), and Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:  24 February 1972, for failing to go at the time prescribed to his appointed place of duty; and 3 May 1977, for being AWOL from 16 March to
20 April 1977.

5.  A DA Form 4187 (Personnel Action), dated 2 November 1977, shows the applicant was reported AWOL on 3 October 1977.

6.  On 2 November 1977, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating Articles 91 and Article 86 of the UCMJ as follows:  Article 91 (2 Specifications) for being disrespectful toward a superior noncommissioned officer (NCO) on or about 
21 September 1977 and by disobeying the lawful order of a superior NCO on or about 21 September 1977; and Article 86 by being AWOL from on or about 
3 October 1977 through on or about 2 January 1978.  



7.  The applicant's record is void of a separation packet containing all the facts and circumstances surrounding his discharge processing.  The record does include a DD Form 214 that shows on 13 March 1978 he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service, in lieu of trial by court-martial. It also shows he received a UOTHC discharge and that he completed 6 years,
7 months, and 21 days of total creditable active duty service and accrued 127 days of time lost due to AWOL.

8.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.

9.  The applicant provides two evaluation reports that show his duty performance was satisfactory during the period from December 1975 to November 1976, and that it was below average from December 1976 to November 1977.

10.  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.

11.  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.

12.  Paragraph 3-7b, provides that a general discharge (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 UOTHC discharge should be upgraded to an HD because he was a good Soldier before his wife slept with an officer 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 DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service 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.

4.  Procedurally, members against whom court-martial charges are preferred and who desire to voluntarily request discharge are required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to offenses under the UCMJ that authorized the imposition of a punitive discharge.

5.  Absent any evidence of record or independent evidence provided by the applicant to the contrary, it is presumed that the applicant's discharge processing was accomplished in accordance with the applicable regulation; and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The record shows the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in him receiving a punitive discharge.  The UOTHC discharge he received was normal and appropriate under the regulatory guidance, and his overall record of service was not sufficiently meritorious to support the separation authority issuing a GD or HD at the time of discharge, nor does it support an upgrade now.

7.  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)                                         AR20090009773



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ABCMR Record of Proceedings (cont)                                         AR20090009773



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