BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20090020937 


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 charges of being absent without leave (AWOL) be expunged from his record.  He also requests his rank/grade be restored to specialist four (SP4)/E-4 and his military occupational specialty (MOS) of 11D (Armor Reconnaissance Specialist) be restored to him.  He also requests his general discharge be upgraded to an honorable discharge.

2.  The applicant states during the period he was AWOL in the Republic of Vietnam (RVN) he had gone out on a mission with another platoon without permission and his platoon was called up and he was reported absent.  He states while he was at Fort Dix, NJ most of his belongings were stolen.  He states prior to his arrival at Fort Dix, a huge riot had taken place and anything not bolted down was either stolen or destroyed.  He states he was led to believe if he just signed some papers he would be discharged.  However, he was not told the discharge would be an unfavorable one.

3.  The applicant provides a copy of:

* his DD Form 214 (Report of Separation from Active Duty) for the period ending 3 December 1970
* his DD Form 215 (Correction to DD Form 214, Certificate of Release or Discharge from Active Duty), dated 29 April 1981
* his General Discharge Certificate
* his DA Form 20 (Enlisted Qualification Record)
* 
his DA Form 2627-1 (Record of Proceedings under Article 15, UCMJ [Uniform Code of Military Justice])
* six personal references

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 military personnel records show he enlisted in the Regular Army on 31 October 1968 for a period of 3 years.  He completed basic combat and advanced individual training (AIT) and he was awarded MOS 11D.

3.  The applicant was assigned to A Troop, 1st Squadron, 1st Cavalry Division in the RVN from 15 March 1969 to 29 March 1970.  He was promoted to SP4 on
16 September 1969.

4.  On 15 March 1970, the applicant accepted nonjudicial punishment (NJP) under Article 15, UCMJ, for being AWOL from on or about 28 February to on or about 4 March 1970.  His punishment consisted of reduction to private first class (PFC)/E-3 and forfeiture of $60.00 for 1 month.  The applicant did not appeal his punishment.

5.  An undated letter from Special Processing Battalion (Provisional), Special Troops, U.S. Army Training Center, Infantry, Fort Dix, subject:  Administrative Determination of Lost Time, notified the applicant that an administrative decision had determined he was AWOL from 4 May to 2 June 1970.  The letter also advised him his enlistment commitment of 3 years, which should have ended on 30 October 1971, would be extended for a period of 28 days to 28 November 1971.

6.  On 30 September 1970, court-martial charges were preferred against the applicant for being AWOL from on or about 11 June to on or about 21 September 1970.

7.  On 28 September 1970, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of court-martial.  He indicated that he was making the request of his own free.  In his request, he acknowledged he:

* may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate
* would be deprived of many or all Army benefits
* may be ineligible for many or all benefits administered by the Veterans Administration (VA)
* may expect to encounter substantial prejudice in civilian life because of an undesirable discharge

He also acknowledged he had been advised not to accept an undesirable discharge in the expectation that it would later be changed to a general or honorable discharge because the likelihood of that ever occurring was extremely rare.  The applicant did not submit any statements in his own behalf.

8.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of an undesirable discharge, if his request is approved, and of the procedures and rights available to him.

9.  On 9 November 1970, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished an Undesirable Discharge Certificate.

10.  On 3 December 1970, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial with an undesirable discharge.  He had completed 1 year,
8 months, and 21 days of active service with 133 days of time lost.

11.  The applicant's Official Military Personnel File (OMPF) does not contain any orders awarding him MOS 57A (Duty Soldier) or withdrawing his MOS of 11D.

12.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade his discharge.  On 3 March 1976, the ADRB reviewed and upgraded the applicant's discharge to a general discharge.  The applicant was issued a new DD Form 214.  Item 16a (Primary Specialty Number and Title) shows his MOS as 57A (Duty Soldier).

13.  The applicant submitted six personal references that attest to his being a good Christian and a good citizen.

14.  Army Regulation 27-10 (Military Justice) prescribes policies and procedures pertaining to the administration of military justice.  Paragraph 3-4 (Personal exercise of discretion) of this regulation states that a commander will personally exercise discretion in the nonjudicial punishment process by:

* evaluating the case to determine whether proceedings under Article 15 should be initiated
* determining whether the Soldier committed the offense(s) where Article 15 proceedings are initiated and the Soldier does not demand trial by court-martial
* determining the amount and nature of any punishment, if punishment is appropriate.

15.  Army Regulation 600-37 (Unfavorable Information) states that once an official document has been properly filed in the OMPF, it is presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  Appeals that merely allege an injustice or error without supporting evidence are not acceptable and will not be considered.

16.  Army Regulation 635-5 (Separation Documents), in effect at the time, established the standardized policy for preparing and distributing the DD Form 214.  The regulation stated the primary MOS (PMOS) will be entered in item 16a (Specialty Number & Title).

17.  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. 

18.  Army Regulation 635-200, paragraph 3-7b, states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends all charges of AWOL should be removed from his records.

2.  The applicant has provided no evidence of an error or injustice in the charges of three periods of AWOL documented in his MPRJ.  Once official documents have been properly filed in the OMPF, they are presumed to be administratively correct and to have been filed pursuant to an objective decision by competent authority.  Thereafter, the burden of proof rests with the individual concerned to provide evidence of a clear and convincing nature that the document is untrue or unjust, in whole or in part, thereby warranting its alteration or removal from the OMPF.  The applicant has failed to submit evidence that would satisfy that requirement.

3.  The applicant contends his rank of SP4 should be restored.

4.  The applicant was reduced to PFC as a result of his punishment under
Article 15, UCMJ on 15 March 1970 for being AWOL for 5 days.  He did not appeal this punishment.  There is no evidence the applicant's commander did not personally exercise discretion in the nonjudicial punishment process.  There is no indication of procedural or other errors that would tend to jeopardize the applicant's rights.  Therefore, there is insufficient evidence to indicate an error or injustice occurred.

5.  The applicant contends his MOS 11D should be restored.

6.  The applicant was awarded MOS 11D after he completed his AIT.  There are no orders in his MPRJ withdrawing his MOS 11D.  In addition, there is no evidence in his MPRJ of his being awarded MOS 57A.  Therefore, it is appropriate to change the entry in item 16a of his DD Form 214 to show his MOS as 11D.

7.  The applicant contends his discharge should be upgraded to honorable.  He contends he was not told his discharge would be an unfavorable one.

8.  In his request for discharge for the good of the service, the applicant acknowledged he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he could be deprived of many or all Army and VA benefits as a result of such discharge.  Therefore, his contention is not supported by the evidence.

9.  The applicant’s voluntary 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 administratively correct and in conformance with applicable regulations.

10.  The references submitted by the applicant attesting to his post-service conduct were considered.  However, good post-service conduct alone is not sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.

11.  The applicant had 133 days of time lost.  Therefore, he did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is insufficient evidence to further upgrade his discharge to honorable.

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 16a of his DD Form 214 the entry "57A1O (Duty Soldier)" and replacing it with the entry "11D (Armor Reconnaissance Specialist)."

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 the removal of his periods of AWOL, restoration of his rank, and upgrade of his general discharge.



      __________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)                                         AR20090020937



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020937



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1