IN THE CASE OF:	  

		BOARD DATE:	  22 June 2010

		DOCKET NUMBER:  AR20090021249 


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 that his undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states he received honorable discharges following two of his three periods of enlistment.  He also notes he served a tour of duty in the Republic of Vietnam and was the recipient of the Army Good Conduct Medal (2nd Award), the Vietnam Service Medal, and the Republic of Vietnam Campaign Medal with 1960 Device, and he asks that these accomplishments be taken into consideration.

3.  The applicant provides one DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and two DD Forms 214 (Reports of Separation from Active Duty).

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 initially enlisted in the Regular Army (RA) on 23 September 1968.  He completed initial entry training and was awarded military occupational specialty (MOS) 64B (Heavy Vehicle Driver).  He was stationed in the Federal Republic of Germany for a year prior to being sent to the Republic of Vietnam for 7 months.  On 22 September 1971, he was released from active duty with an honorable characterization of service and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement).  He had completed 3 years of active service and he held the rank/pay grade of specialist five (SP5)/E-5 at the time of his separation.

3.  Following a year in the USAR, the applicant enlisted in the RA on 26 September 1972 in the rank/pay grade of SP5/E-5.  He was reclassified into MOS 64C (Motor Transport Operator).  On 29 December 1974, he was honorably discharged for the purpose of immediate reenlistment in the rank/pay grade of SP5/E-5.  He had completed 2 years, 3 months, and 4 days of active service.  

4.  The applicant's record shows throughout his military service he was awarded or authorized the National Defense Service Medal, the Army Good Conduct Medal (2nd Award), the Vietnam Service Medal, the Republic of Vietnam Campaign Medal with 1960 Device, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar [M16], the Drivers Badge, and one Overseas Service Bar.

5.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions for offenses including:

* Missing movement
* Departing his appointed place of duty without authority
* Failing to go to his appointed place of duty at the prescribed time

6.  A DD Form 458 (Charge Sheet), dated 16 December 1976, shows the applicant was charged with two specifications of violation of Article 86 of the UCMJ and his chain of command recommended he be tried by special court-martial empowered to adjudge a bad conduct discharge.  The specifications included:

* Absenting himself from his unit without authority for the period 5 August 1976 to 20 August 1976
* Absenting himself from his unit without authority for the period 2 September 1976 to 7 December 1976

7.  On 17 December 1976, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions. He acknowledged he understood that if his discharge request 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.

8.  The applicant's unit and battalion commanders recommended approval of his request and the issuance of an Undesirable Discharge Certificate.  On 5 January 1977, the separation authority approved the applicant's request and directed that he be reduced to the lowest grade, and issued a DD Form 258A (Undesirable Discharge Certificate).

9.  Headquarters, U.S. Army Training Center, Fort Dix, New Jersey, 
Orders 010-79, dated 10 January 1977, reduced the applicant from SP5/E-5 to private (PV1)/E-1 and assigned him to U.S. Army Transfer Point, Fort Dix, for separation processing and the issuance of a DD Form 258A.

10.  On 12 January 1977, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 and issued an Undesirable Discharge Certificate.  He had completed 1 year, 8 months, and 22 days of creditable active military service during the period under review and had 111 days of lost time, and 26 days of excess leave.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part, 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 at any time after the charges have been preferred.

13.  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.

14.  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 contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record reveals a disciplinary history that includes acceptance of NJP under the provisions of Article 15 of the UCMJ on three occasions and 111 days of lost time.

3.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of chapter 10 of Army Regulation
635-200 to avoid a trial by court-martial which may have resulted in a felony conviction.

4.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service during the period of service covered by the 12 January 1977 DD Form 214.

5.  It is duly noted that the applicant had two periods of honorable service prior to his final enlistment.  However, based on his record of indiscipline, the applicant's prior service is not sufficient to mitigate misconduct that led to his final discharge.
Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or general characterization of service.

6.  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)                                         AR20090021249



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ABCMR Record of Proceedings (cont)                                         AR20090021249



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