BOARD DATE:	  February 17, 2010

		DOCKET NUMBER:  AR20090016028 


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, upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states, in effect, that he has multiple physical ailments to include knee pain, poor hearing, migraine headaches, hypertension, and bilateral foot pain.  He also states he suffers from post-traumatic stress disorder with loss of memory and an inability to function from time to time.

3.  The applicant provides a Department of Veterans Affairs (VA) Form 21-4138 (Statement in Support of Claim), dated 25 August 2009; two DD Forms 214 (Armed Forces of the United States Report of Transfer or Discharge); and a character reference letter from C----- L. S------, dated 16 July 2009, 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 was inducted into the Army of the United States on 27 May 1968.  On 30 May 1968 he was discharged for the purpose of enlisting in the Regular Army (RA).  On 31 May 1968 he enlisted in the RA for a period of 3 years.  He successfully completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 72C (Switchboard Operator).  The highest rank/grade he attained during his tenure of service was specialist four (SP4)/E-4.

3.  The applicant served in Vietnam from 12 December 1968 to 11 December 1969 with his principal duty as a switchboard operator.

4.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions during the period 22 April 1969 to 23 November 1969 for failing to obey a lawful regulation on 18 April 1969 and on 8 September 1969; for wrongfully leaving the limits of a designated command post in the Republic of Vietnam on 8 September 1969; and for leaving his appointed place of duty without authority on 14 November 1969.

5.  Initial court-martial charges were preferred against the applicant on 18 August 1970 for being absent without leave (AWOL) during the period 21 May 1970 to 31 May 1970; for being AWOL during the period 13 June 1970 to 28 July 1970; and for conspiracy to commit larceny, for larceny, for destruction of private property, and for unlawfully carrying concealed weapons, all on 28 July 1970.

6.  On 7 October 1970, additional court-martial charges were preferred against the applicant for being AWOL during the period 25 September 1970 to 5 October 1970.

7.  On 17 November 1970, the court-martial charges were returned to the applicant's immediate commander because the applicant was pending civilian charges for grand larceny.  However, on 18 November 1970, the applicant was returned to military control at Fort Jackson, SC.

8.  On 30 November 1970, further additional court-martial charges were preferred against the applicant for being AWOL during the period 6 November 1970 to 18 November 1970; for escaping from lawful custody on 18 November 1970; and for being AWOL during the period 18 November 1970 to 30 November 1970.

9.  The applicant's complete administrative separation packet is not contained in the available records for the Board's review.

10.  On 19 February 1971, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel),
chapter 10 (Discharge for the Good of the Service), in lieu of court-martial.  The DD Form 214 issued to the applicant confirms he completed a total of 2 years, 5 months, and 24 days of total creditable active military service with 85 days of lost time due to AWOL or confinement.  His service was characterized as under other than honorable conditions.

11.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

12.  As evidence in support of his application, Mr. S------, a retired summary court judge, provided a character reference letter attesting to the applicant's character stating, in effect, that he has known the applicant for many years and that the applicant is a good man who has maintained a job all of his working life.

13.  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 VA 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.  

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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s record shows he was charged on three separate dates with the commission of offenses punishable under the UCMJ.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive an undesirable discharge.

2.  The type of discharge and the reason for separation are appropriate considering the known facts of this case.  Therefore, there is no basis for warranting an upgrade of the applicant's undesirable discharge to either a general, under honorable conditions or an honorable discharge.

4.  It is commendable that the applicant's character reference states he has been employed most of his adult life and it is regrettable that the applicant is suffering from several medical conditions.  However, these do not form the basis to upgrade a properly issued discharge.

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)                                         AR20090016028



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ABCMR Record of Proceedings (cont)                                         AR20090016028



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