BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090018346 


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

2.  The applicant provides no statement or documentation 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 7 August 1970.  He was trained in and awarded military occupational specialty 71B (Clerk Typist) and specialist four/E-4 (SP4/E-4) is the highest rank he attained while serving on active duty.

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows the following in the items indicated:

	a.  Item 31 (Foreign Service) - RVN service from 20 January 1971 to 
17 January 1972;

	b.  Item 38 (Record of Assignments) - "excellent" conduct and efficiency ratings during his RVN tour with the 135th Assault Helicopter Company; and 

	c.  Item 41 (Awards and Decorations) - National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), 2 Overseas Service Bars, and Marksman Marksmanship Qualification Badge with Rifle Bar. 

4.  The applicant's record shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:

	a.  26 August 1970 - For absenting himself from his unit without proper authority;

	b.  5 May 1971 - For wrongfully possessing and using a false official document; and

	c.  27 July 1972 - For disobeying a lawful order from a noncommissioned officer (NCO).  

5.  The record also shows that on 5 May 1972, a summary court-martial (SCM) found the applicant guilty of willfully disobeying a lawful order.  

6.  On 25 September 1972, a DD Form 458 (Charge Sheet) was initiated preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being absent without leave (AWOL) from on or about 7 September through on or about 21 September 1972 and by failing to be at his appointed place of duty at the prescribed time on or about 25 September 1972.  

7.  On 27 September 1972, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum punishment authorized under the UCMJ, the possible effects of an undesirable discharge (UD) and of the procedures and rights available to him,  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, the applicant acknowledged he understood the following effects that could occur if his discharge were approved:

	a.  He could be deprived of many or all Army benefits;

	b.  He could be ineligible for many or all benefits administered by the Veterans Administration;

	c.  He could be deprived of his rights and benefits as a veteran under both Federal and State laws; and 
	
   d.  He could encounter substantial prejudice in civilian life by reason of a UD.
   
9.  The applicant elected to submit a statement in his own behalf.  In the statement, he stated he wanted to be discharged from the Army due to his grandmother's heart trouble and arthritis and inability to do certain things.  He further stated he believed his discharge would be beneficial to both the Army and himself.

10.  On 9 November 1972, the separation authority approved the applicant's request for discharge and directed he receive a GD.  On 13 November 1972, the applicant was discharged accordingly.  

11.  The DD Form 214 issued to the applicant upon his discharge shows he completed 2 years, 3 months, and 7 days of creditable active military service.  It also shows he earned the NDSM, VSM, RVNCM with 60 Device, 2 Overseas Service Bars, and Marksman Marksmanship Qualification Badge with Rifle Bar.  

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 allows members who have committed an offense or offenses for which the authorized punishment includes a punitive discharge to request 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.  A discharge under other than honorable conditions (UOTHC) 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 of service.  


14.  The same regulation stipulates 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his GD be upgraded to an HD was carefully considered.  However, there is insufficient evidence to support granting the requested relief.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. 
After consulting with defense counsel, he voluntarily requested discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The evidence of record also confirms the applicant was processed for separation in lieu of trial by court-martial at his own request.  The separation authority approved his request and appropriately directed he receive a GD which was consistent with regulatory policy in effect at the time and accurately reflects the applicant's overall record of service.  

4.  The applicant’s record reveals an extensive disciplinary history which includes three records of NJP and an SCM conviction.  The separation authority clearly recognized the applicant's combat service in the RVN when he directed the applicant receive a GD even though a UOTHC discharge or UD was normally appropriate for members discharged in lieu of trial by court-martial.  The applicant's disciplinary infractions clearly diminished the overall quality of his service below that meriting a fully honorable discharge.  As a result, his overall record of service does not support an upgrade of his discharge to an HD. 

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)                                         AR20090018346



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ABCMR Record of Proceedings (cont)                                         AR20090018346



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