BOARD DATE:	  18 March 2010

		DOCKET NUMBER:  AR20090014675 


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 an upgrade of his under other than honorable conditions discharge.  He also requests correction of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show his correct entry date, airborne status, and award of the green beret. 

2.  The applicant states his DD Form 214 lists an incorrect entry date and does not mention his airborne status (8 jumps).  Additionally, there is no mention of his earning a green beret at Fort Bragg, NC.  He made a mistake and quit the green berets.

3.  The applicant provides a copy of his diploma showing completion of the Basic Airborne Course, dated 27 March 1970; a copy of his DD Form 214, dated 24 March 1971; and a copy of his special forces test results in support of his request.

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 show he enlisted in the Regular Army (RA) for a period of 3 years on 9 October 1969.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  On 27 March 1970, he completed the Basic Airborne Course and was subsequently reassigned to Company D, U.S. Army Special Forces Training Group, Fort Bragg, NC, on 5 April 1970, for entry into special forces training.

4.  His records show he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 2 June 1970, for being absent without leave (AWOL) from on or about 1 June 1970 to on or about 2 June 1970.  His punishment consisted of 14 days of restriction, 14 days of extra duty, and a forfeiture of $15.00 pay.

	b.  on 24 July 1970, for being AWOL from on or about 19 July 1970 to on or about 24 July 1970.  His punishment consisted of 14 days of restriction, 14 days of extra duty, a forfeiture of $30.00 pay, and a reduction to private/PV2.

5.  On 24 July 1970, the applicant's immediate commander notified him that he recommended his termination from further special forces training and reassignment outside the special forces.

6.  On 25 July 1970, he acknowledged receipt of the notification but elected to waive appearance before an administrative review board and declined making a statement on his own behalf.

7.  On 26 July 1970, his battalion commander approved the termination.

8.  On 1 August 1970, he departed his unit in an AWOL status.

9.  On 3 August 1970, Headquarters, U.S. Army John F. Kennedy Center for Military Assistance, Fort Bragg, NC, ordered the applicant's hazardous duty pay terminated.

10.  On 1 September 1970, he was dropped from the Army rolls.

11.  On 5 September 1970, he was arrested by civil authorities for the civilian charge of disorderly conduct.  He was jailed, paid a fine, and was ultimately released to military control at Fort Meade, MD.

12.  On 15 October 1970, he pled guilty at a special court-martial to one specification of being AWOL from on or about 1 August 1970 to on or about 5 September 1970.  The court sentenced him to a reprimand and a forfeiture of $75.00 pay per month for 3 months.  The convening authority approved the sentence on 19 October 1970.

13.  On 7 December 1970, he again departed his unit in an AWOL status and was subsequently dropped from the Army rolls.  He returned to military control on 1 March 1971.

14.  On 5 March 1971, his command preferred court-martial charges against him for one specification of being AWOL from on or about 7 December 1970 to on or about 1 March 1971.

15.  On 5 March 1971, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions; the maximum permissible punishment authorized under the UCMJ; the possible effects of a request for discharge; and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

16.  In his request for discharge, he acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further understood that if such discharge was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

17.  On an unknown date in March 1970, the separation authority approved his request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, he was discharged on 24 March 1971.

18.  His DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial with a character of service of under other than honorable conditions.  This form also shows he completed 1 year, 6 months, and 18 days of creditable active service and had 119 days of lost time.

	a.  Item 17c (Date of Entry) shows "9 OCT 49."

	b.  Item 23a (Specialty Number and Title) shows his MOS as 11B with no special qualification identifier "P" to designate his airborne qualification or "S" to designate completion of the special forces course.

19.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

20.  He submitted a copy of his airborne certificate that shows he successfully completed the Airborne Course on 27 March 1970 and a copy of his special forces training test results that show he passed certain tests prior to his termination.

21.  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.

22.  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.

23.  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.

24.  Army Regulation 635-5 (Separation Documents) establishes the standardized policy for preparing and distributing the DD Form 214.  The purpose of the separation document is to provide the individual with documentary evidence of his or her military service.  It is important that information entered on the form should be complete and accurate.  Chapter 2 of the regulation in effect at the time contained guidance on the preparation of the DD Form 214.  It stated that item 23a shows the primary MOS code number and title.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be upgraded and his DD Form 214 should be corrected.

2.  With respect to his date of entry, the evidence of record shows he enlisted in the RA and entered active duty on 9 October 1969.  His DD Form 214 erroneously listed his date of entry as 9 October 1949.  Therefore, he is entitled to correction of his DD Form 214 to show his correct date of entry as 9 October 1969.

3.  With respect to his airborne status, the evidence of record shows he completed airborne school in March 1969.  However, subsequent to his multiple instances of willful misconduct, his hazardous duty was terminated and as such he lost qualification for this badge.

4.  With respect to his special forces training, the evidence of record shows he was enrolled in special forces training and passed certain special forces tests; however, his immediate commander terminated his special forces training as a result of his continuous misconduct.  He never completed special forces training and was never authorized to wear a green beret.

5.  With respect to upgrading his discharge, the applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  His discharge accurately reflects his overall record of service.

6.  There is no evidence in the available records nor did he provide documentation to warrant an upgrade of his discharge.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or a general under honorable conditions discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

__x______  ___x_____  __x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by deleting from item 17c of his DD Form 214 the entry "9 OCT 49" and adding the entry "9 OCT 69."

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to his airborne badge, upgrade of his discharge, and special forces training.



      ___________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)                                         AR20090014675



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ABCMR Record of Proceedings (cont)                                         AR20090014675



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