BOARD DATE:	  February 4, 2010

		DOCKET NUMBER:  AR20090013958


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 under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states he was told by his military lawyer that if he signed for a UOTHC discharge, it would be upgraded in 6 months.  He states he now needs Department of Veterans Affairs (VA) assistance as he is a homeless Vietnam veteran.

3.  The applicant provides:

	a.  a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period 22 July 1968 to 2 April 1969;

	b.  a copy of his DD Form 214 for the period 3 April 1969 to 27 August 1971 showing service in Vietnam from 13 January – 5 December 1970; and

	c.  copies of 7 unidentified documents pertaining to medical issues in 2008 and 2009.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

Counsel makes no additional statement.



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 records are incomplete.  Available records indicate:

   a.  On 30 November 1970, his commander wrote a memorandum stating the applicant received a rehabilitative transfer to the unit for "repeated misconduct and known drug abuse."

	b.  On 14 July 1971, he was convicted by a special court-martial of unlawfully entering the mess hall with intent to commit larceny.  As punishment, he was reduced to Private (PVT/E-1), restricted for 30 days, and made to forfeit $50 pay per month for 1 month.

3.  The applicant’s record does not contain a copy of his administrative discharge packet.  However, the applicant’s record does contain a properly constituted DD Form 214 which identifies the reason and characterization of the discharge.  The evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the 
applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  The applicant's request for discharge was signed on or about 6 August 1971.

4.  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 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 UOTHC is normally considered appropriate.  However, at the time of the applicant’s separation, the regulation provided for the issuance of an undesirable discharge.

5.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states that an Honorable Discharge (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.

	b.  Paragraph 3-7b states 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 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 wants a discharge upgrade which he says was supposed to have been accomplished automatically after 6 months.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.  

3.  Court-martial charges were preferred against the applicant for unknown offense(s).  Had he been tried and convicted, he could have received a punitive 
discharge and a sentence to confinement.  In the absence of information to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.



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 the aforementioned 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)                                         AR20090013958





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ABCMR Record of Proceedings (cont)                                         AR20090013958



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