IN THE CASE OF:	  

		BOARD DATE:	  26 January 2010

		DOCKET NUMBER:  AR20090013347 


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 either a general under honorable conditions discharge or an honorable discharge.

2.  The applicant states, in effect, that he served in the Army for a period of 2 years and he served in Vietnam.

3.  The applicant provides documentary evidence in support of this 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 that he enlisted in the Regular Army and entered active duty on 26 February 1968.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).  He served in the Republic of Vietnam during the period 11 September 1968 through 1 September 1969.  On 24 March 1970, the applicant was discharged for the purpose of immediate reenlistment with an honorable characterization of the 2 years and 29 days of service he had completed at the time.  During this period of enlistment, the applicant was awarded or authorized the National Defense Service Medal, the Combat Infantryman Badge, the Parachutist Badge, two overseas service bars, the Vietnam Service Medal, the Army Commendation Medal, the Bronze Star Medal, and the Republic of Vietnam Campaign Medal with Device (1960).

3.  On 25 March 1970, the applicant reenlisted in the Regular Army and retained MOS 11B and his rank/grade of private first class/E-3, which was the highest rank/grade he attained while serving.  However, at the time of separation the applicant held the rank of private/E-1.

4.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 1 March 1972 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) under other than honorable conditions.  This form also shows he completed 1 year, 6 months, and 9 days of creditable active service during this period of enlistment.

5.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions during the period 15 June 1970 through 17 August 1971 for offenses which include absenting himself from his place of duty, breaching the peace by engaging in a fist fight with another Soldier, disobeying a lawful order from a senior commissioned officer, and absenting himself without authority from his unit in an absent without leave (AWOL) status.

6.  The applicant's record also shows he was tried and convicted by summary courts-martial on three occasions during the period 19 October 1970 through 17 September 1971 for being AWOL for the following periods:  18 September 1970 to 9 October 1970, 1 December 1970 to 11 February 1971, and 29 August 1971 to 9 September 1971.

7.  On 27 October 1970, the applicant's unit commander initiated action to have him barred from reenlistment for being a substandard Soldier.  The commander stated that the applicant had constantly been in trouble with his superior, had been slovenly in both his actions and his appearance, and had compiled quite a record of indebtedness.  The commander continued that the applicant's substandard performance in the unit culminated with NJP under the provisions of Article 15 of the UCMJ for being AWOL, breach of peace, disobeying a lawful order, and a conviction by a summary court-martial for being AWOL for a period of 22 days.  The unit commander opined that the applicant's character and overall potential value to the Army were not consistent with those required of a career Soldier or those necessary to reach the Army's goal of excellence.  The applicant's bar to reenlistment was approved on 17 November 1970.

8.  A Headquarters, Fort Lewis, Form 967 (Interview Sheet), dated 28 January 1972, shows the applicant departed his unit in an AWOL status on 1 October 1971 and remained absent until he was apprehended by civilian authorities on 22 January 1972.  This form shows the applicant returned to military control on 23 January 1972.  This form further shows the applicant was charged with public drunkenness by civil authorities during his period of absence.

9.  Headquarters, U.S. Army Personnel Center, Fort Lewis, Special Orders Number 61, dated 1 March 1972, show the applicant was discharged for the good of the service under other than honorable conditions and issued a DD Form 258A (Undesirable Discharge Certificate) effective 1 March 1972.

10.  Item 11c (Reason and Authority) of the applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), with a separation program number of 246.  Item 13a (Character of Service) shows that he received an under other than honorable conditions characterization of service.  Item 13b (Type of Certificate Issued) shows that he was issued a DD Form 258A.

11.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  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 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 to an individual who was discharged for the good of the service.

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.

14.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his undesirable discharge to either a general under honorable conditions or an honorable discharge was carefully considered.

2.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or an honorable discharge.

3.  The fact that the applicant served in the Republic of Vietnam during his first term of enlistment is duly noted and was no doubt taken into consideration when the separation authority reviewed his case prior to determining the characterization of his service.  However, the applicant's service in the Republic of Vietnam does not justify his pattern of misconduct or the fact that he committed a serious crime which rendered him triable by court-martial.

4.  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)                                         AR20090013347



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ABCMR Record of Proceedings (cont)                                         AR20090013347



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