IN THE CASE OF:	  

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090014304 


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, that his general under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he does not believe the Army Discharge Review Board (ADRB) considered the Army Commendation Medal (ARCOM) or the personal problems he was experiencing at the time when it reviewed his discharge upgrade request.

3.  The applicant provides a self-authored statement, ARCOM certificate, commander's letter of support, and ADRB review checklist in support of his 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 he enlisted in the Regular Army and entered active duty on 12 January 1967.  He was trained in and awarded military occupational specialty (MOS) 11F (Infantry Operations and Intelligence Specialist).  It also shows he was promoted to specialist four (E-4) on 19 February 1968 and that this is the highest rank he attained while serving on active duty.  His DA Form 20 (Enlisted Qualification Record) shows he served in the Republic of Vietnam (RVN) from 12 June 1967 through 10 January 1968 and that he earned the National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), Combat Infantryman Badge (CIB), RVN Campaign Medal (RVNCM), and Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.

3.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 May 1969 for failure to repair and a special court-martial (SPCM) conviction of violating Article 86 of the UCMJ by being absent without leave (AWOL) from 30 December 1968 through 27 February 1969.  His record also shows he accrued 250 days of lost time due to two separate periods of AWOL and a period of confinement between 30 December 1968 and 23 March 1970.

4.  On 9 April 1970, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial and received an undesirable discharge (UD).  The DD Form 214 he was issued shows he completed 2 years, 6 months, and 18 days of active military service and accrued 250 days of lost time due to AWOL and confinement.

5.  On 29 March 1978, the ADRB voted to upgrade the applicant's discharge to a GD under the criteria of the Special Discharge Review Program (SDRP) based on his successful completion of his tour in the RVN and the fact he completed over 24 months of service.  On 7 July 1978, the ADRB voted to affirm this decision based on the applicant's overall record of service, which included completion of 2 1/2 years of service and a tour in the RVN.  However, the ADRB confirmed the applicant's initial discharge was proper and equitable and took no action to change the authority and reason for discharge during both reviews.

6.  The applicant provides an award certificate that shows he was awarded the ARCOM for meritorious service in the RVN from June 1967 through May 1968 and a discharge review checklist that indicates individual awards and personal problems were identified as factors for consideration during a discharge review.  He also provides a statement in which he claims he was experiencing personal problems at the time of his discharge, which included his girlfriend's pregnancy while he faced a second tour in the RVN.

7.  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.  An under other than honorable conditions discharge normally is appropriate for a Soldier who is discharged in lieu of trial by court-martial.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record during the current enlistment.  An HD is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be improper.

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

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that the GD he was granted by the ADRB should be upgraded to an HD based on the fact the ADRB did not consider the ARCOM he was awarded for his service in the RVN and the personal problems he was experiencing at the time of his discharge was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief. 

2.  The evidence of record confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in receiving a punitive discharge. 
His separation processing was accomplished in accordance with the applicable regulation and his rights were fully protected throughout the separation process.

3.  The record further shows that based on his completion of 2 1/2 years of service, which included a tour of duty in the RVN, the ADRB voted to upgrade the applicant's discharge to a GD under the criteria of the SDRP and it later affirmed this upgrade action based on the applicant's overall record of service.  The ADRB confirmed the applicant's initial discharge was proper and equitable and took no action to change the authority and reason for discharge during both reviews.

4.  The applicant's disciplinary history included his acceptance of NJP, an SPCM conviction, and accrual of 250 days of lost time due to AWOL and confinement.  As a result, even though the applicant was awarded the ARCOM and may have been experiencing personal problems at the time of his discharge, these factors are not sufficiently mitigating to overcome this significant record of misconduct which clearly diminished his overall record of service below that meriting a fully honorable discharge.  As a result, there is an insufficient evidentiary basis to support granting the requested HD in this case.

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)                                         AR20090014304



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ABCMR Record of Proceedings (cont)                                         AR20090014304



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