IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090016713 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was informed that his discharge would be upgraded to honorable if there were no incidents for six months after his discharge.  He also states there were no incidents after his discharge that would have prevented this from happening; however, his discharge has not been upgraded.  He adds he would like to apply for veterans' benefits.

3.  The applicant provides copies of his DA Form 20 (Enlisted Qualification Record), reenlistment orders and contract, and discharge documents.

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 enlisted in the Regular Army (RA) on 13 January 1969.  Upon completion of training he was awarded military occupational specialty 51A (Construction Utilities Worker).  He was assigned overseas to Germany on 19 July 1969.

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant entered active duty on 13 January 1969 and was honorably discharged on 25 November 1969 to immediately reenlist in the RA.  At the time he had completed 10 months and 7 days of net active service and
4 months and 6 days of foreign service.

4.  The applicant reenlisted in the RA for a period of 3 years on 26 November 1969 to serve in the Republic of Vietnam.

5.  The applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) on four occasions, as follows.
   
   a.  On 3 July 1970, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $40 and reduction to private (E-2) [suspended for 2 months]. 

   b.  On 11 August 1970, for willfully disobeying a lawful order from his superior noncommissioned officer on two separate occasions.  His punishment consisted of forfeiture of $40, 14 days of restriction, and reduction to private (E-2) [suspended for 30 days].  On 7 September 1970, the suspension of the punishment of reduction to private (E-2) was vacated and ordered executed.

   c.  On 5 October 1970, for failing to go at the time prescribed to his appointed place of duty on three separate occasions.  His punishment consisted of 30 days of extra duty and 15 days of restriction. 

   d.  On 24 October 1970, for sleeping on post as a sentinel and failing to go at the time prescribed to his appointed place of duty on two separate occasions.  His punishment consisted of forfeiture of $20 (suspended for 30 days), 10 days of restriction, and 7 days of extra duty.
   
6.  The applicant's DA Form 20 shows in:

   a.  item 31 (Foreign Service) he served overseas in
* Germany from 19 July through 8 December 1969
* Vietnam from 21 January 1970 through 20 January 1971


	b.  item 33 (Appointments and Reductions) he was
* advanced to private (E-2) on 13 May 1969
* reduced to private (E-1) on 14 July 1969
* advanced to private (E-2) on 18 September 1969
* promoted to private first class (E-3) on 30 January 1970
* reduced to private (E-2) on 12 August 1970
* reduced to private (E-1) on 27 September 1971

   c.  item 44 (Time Lost) he was absent without leave (AWOL) for 199 days from 9 February to 27 August 1971.

7.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

8.  Headquarters, U.S. Army Personnel Center, Fort Dix, New Jersey, Special Orders Number 274, dated 1 October 1971, discharged the applicant under Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) effective
1 October 1971.

9.  The applicant's last DD Form 214 shows he entered active duty this period on
26 November 1969; he was discharged on 1 October 1971 under Army Regulation 635-200, chapter 10 (Discharge for the Good of the Service); and his service was characterized as under other than honorable conditions.  At the time he had completed 1 year, 3 months, and 17 days of net active service during the period under review and 1 year and 13 days of foreign service.

   a.  Item 26a (Non-Pay Periods - Time Lost) shows he had time lost from
9 February to 27 August 1971.
   
   b.  Item 30 (Remarks) shows he served in the Republic of Vietnam from
21 January 1970 to 20 January 1971 and that he had 199 days lost.

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

11.  On 24 February 2005, the Honorable Charles H. T_____ forwarded the applicant's DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 20 January 2005, to the Army Review Boards Agency, St. Louis, Missouri.  There is no evidence of any action being taken on this application.  It was submitted outside the ADRB's
15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

   b.  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.

   c.  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.
  
13.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to honorable because he was informed his discharge would be upgraded if there were no incidents for six months after his discharge, and there were no incidents that would have prevented this from happening.

2.  The applicant completed less than 16 months of his 3-year reenlistment and he had a total of 199 days (nearly 7 months) lost time during the period of service under review.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  

4.  There is no evidence, and the applicant provides insufficient evidence, to show he was advised that his discharge would automatically be upgraded after six months of his discharge.  Moreover, the U.S. Army does not upgrade a discharge solely to enhance a Soldier's eligibility for Government benefits. Therefore, in view of all of the foregoing, the applicant is not entitled to upgrade of the character of service of his discharge.

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 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)                                         AR20090016713



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ABCMR Record of Proceedings (cont)                                         AR20090016713



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