IN THE CASE OF:	  

		BOARD DATE:	    25 March 2010

		DOCKET NUMBER:  AR20090012593 


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 (UD) to an honorable discharge (HD) or no less than a general, under honorable conditions discharge (GD). 

2.  The applicant states he believes he was not afforded due process.

3.  The applicant provides a self-authored brief; DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge); Special Court-Martial (SPCM) Order Number 88, dated 16 September 1971; Review of Discharge letter, dated 5 October 1971; and page 3, item 38 (Record of Assignments) of his DA Form 20 (Enlisted Qualification Record).

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 inducted into the Army of the United States and entered active duty on 9 March 1970.  He was trained in and awarded military occupational specialty (MOS) 36C (Lineman).

3.  The applicant's DA Form 20 shows he served in the Republic of Vietnam (RVN) from 28 August 1970 through 2 October 1971.  Item 38 shows he received "excellent" conduct and efficiency ratings at his training assignments and his first assignment at Fort Gordon, GA.  It also shows he received an "unsatisfactory" conduct rating and a "fair" efficiency rating for his RVN assignment.

4.  The applicant's record shows he earned the National Defense Service Medal, Vietnam Service Medal with 2 bronze service stars, and the RVN Campaign Medal with Device (1960).

5.  The record also reveals a disciplinary history that 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 separate occasions for the offenses indicated:

	a.  25 February 1971, for falsifying an official record with the intent to deceive on 22 February 1971;

	b.  28 April 1971, for violating a lawful general regulation by being in an off-limits area on 18 April 1971; and

	c.  10 May 1971, for wrongfully appropriating a military truck valued at $8,590.00 on 1 May 1971.

6.  The applicant's disciplinary history also includes an SPCM conviction on 
21 August 1971 for violating Article 92 of the UCMJ by violating a lawful general regulation by being in an off-limits area on 24 March 1971.  The resulting sentence was a forfeiture of $25.00 pay per month for one month.

7.  The applicant's record does not contain a separation packet with the facts and circumstances surrounding his discharge processing.  It does contain a DD Form 214 that shows he was separated 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, that he received a UD on 5 October 1971, and that he completed 1 year, 6 months, and 27 days of active military service. 
8.  The record gives no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations.  

9.  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 Veterans Administration 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.

10.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.  It further states in paragraph 3-7b, 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 HD.  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 discharge was unjust and inequitable because he was denied due process was carefully considered.  However, although the available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing, the evidence is still not sufficient to support granting the requested relief.

2.  The applicant's record contains a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's final discharge.  As a result, absent evidence to the contrary, this document carries with it a presumption of government regularity in the discharge process. 
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.  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.

4.  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.  It is further presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20090012593



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ABCMR Record of Proceedings (cont)                                         AR20090012593



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