IN THE CASE OF:	

		BOARD DATE:	  04 March 2010

		DOCKET NUMBER:  AR20090010935 


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 that his undesirable discharge be upgraded to an honorable discharge. 

2.  The applicant states that he was a teenager when he was sent to Vietnam and that he saw heavy combat.  He states that he was discharged for one incident that involved the amount of ammunition that he was carrying.  He states the Army identified him as having psychiatric problems and the type of discharge that he received has impacted his whole life and prevented him from obtaining any benefits that he might obtain from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documentation.

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.  On 16 February 1968, the applicant enlisted in the Army in Jacksonville, Florida, at age 19, for 3 years, in the pay grade of E-1.  He successfully completed his training as an armor crewman.  He was transferred to Vietnam on 17 December 1968 and he returned to the Continental United States on 2 May 1969.

3.  All of the facts and circumstances pertaining to the applicant's discharge are not available.  However, a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that he was furnished shows he was discharged on 5 May 1969, for the good of the service in lieu of trial by court-martial and that he was furnished an Undesirable Discharge Certificate. 

4.  On 3 October 1977, the applicant petitioned the Army Discharge Review Board (ARBA) for an upgrade of his discharge.  In its decisional document, the ADRB noted that the applicant had a clean record until an incident occurred on 24 March 1968, for which he chose to submit a request for discharge for the good of the service rather than to fact a general court-martial.  The ADRB noted that during an inspection of personnel prior to going on guard, it seemed that the applicant failed to have the required number of magazines for his Rifle M-16.  When the acting first sergeant discovered this he sent the applicant to get additional magazines and when he returned without the magazines words ensued, which ultimately resulted in the applicant communicating a threat.  After a thorough investigation, the investigating officer recommended that the applicant be furnished a general discharge; however, the commanding general approved a chapter 10 discharge and directed the issuance of an Undesirable Discharge Certificate.  The ADRB noted that 9 days before the incident the applicant was diagnosed by a psychiatrist with an "emotionally unstable personality." 

5.  The ADRB's decisional documents show the applicant's court-martial charges included lifting a weapon against a superior noncommissioned officer and communicating a threat to injure "by shooting."  The ADRB found that the applicant's discharge was proper and equitable and voted to deny his petition.

6.  Army Regulation 635-200 (Enlisted Personnel Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant’s separation an undesirable discharge was normally considered appropriate.

7.  Paragraph 3-7a of Army Regulation 635-200 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.  

8.  Paragraph 3-7b of Army Regulation 635-200 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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge because his discharge was based on one incident that occurred over the amount of ammunition he was carrying and also due to the fact that the Army identified him as having psychiatric problems.

2.  His contentions have been considered; however, his contentions are not sufficiently mitigating to warrant the requested relief.  

3.  The available records show the applicant was charged with lifting a weapon against a superior noncommissioned officer and communicating a threat to injure "by shooting."  Although he was diagnosed as having an emotionally unstable personality, it is not sufficient excuse for lifting a weapon against a superior noncommissioned officer and communicating a threat to injure "by shooting."  

4.  The evidence of record also reflects the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  Considering the nature of the offenses for which the applicant was charged, it does not appear that the undesirable discharge he received was too harsh.   The applicant's discharge appears to be commensurate with his overall record of service and in the absence of evidence to the contrary, it must be presumed that the action taken by the Army in his case was correct.  The fact that he may be unable to obtain VA benefits as a result of the type of discharge he received is not a basis for upgrading his discharge to fully honorable. 

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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090010935



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ABCMR Record of Proceedings (cont)                                         AR20090010935



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