BOARD DATE:	  29 July 2010

		DOCKET NUMBER:  AR20090021692 


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 discharge be upgraded to honorable.

2.  The applicant provides no supporting statement or argument.

3.  The applicant provides a letter of character reference.

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 on 27 December 1966, completed training, and was initially awarded military occupational specialty 31E (Field Ratio Repairman) with a subsequent award of 13A (Cannoneer).

3.  He served in Vietnam from 6 November 1967 through 4 November 1968 and 29 June 1969 through on or about 13 October 1970.

4.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), as follows on:

	a.  10 February 1967, for disorderly conduct;

	b.  7 April 1967, for being absent without leave (AWOL) for 6 days;

	c.  1 May 1967, for failure to go to his place of duty;

	d.  12 May 1967, for 1 day of AWOL;

	e.  8 July 1967, for 1 day of AWOL;

	f.  3 August 1967, for sleeping on sentry duty;

	g.  5 August 1967, for being absent from his place of duty and breaking restriction;

	h.  25 August 1967, for using provoking words and gestures toward a noncommissioned officer (NCO);

	i.  15 April 1968, for disrespectful language toward an NCO;

	j.  25 May 1968, for misconduct; and 

	k.  29 July 1970, for sleeping on duty as a sentinel in an area subject to hostile fire, being absent from duty for 3 days, and being disrespectful in language toward an NCO.

5.  The applicant was found guilty by special courts-martial on:

	a.  21 June 1969, for 102 days of AWOL and failure to obey a lawful order from the headquarters commandant; and

	b.  1 May 1970, for 79 days of AWOL.

6.  The applicant went AWOL on 7 January 1970.  Court-martial charges were preferred on 14 January 1970 for this period of AWOL.  He returned to military control on 3 April 1970.  He was placed in pretrial confinement and the charges were amended to include the total period of AWOL.

7.  On 2 October 1970, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that if his request were accepted, he could receive a discharge under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received an undesirable discharge.

8.  The discharge authority approved the applicant's request for separation and directed he be reduced to the lowest enlisted grade and separated with an undesirable discharge.

9.  The applicant was discharged on 14 October 1970 with an undesirable discharge.  He had 2 years, 9 months, and 18 days of creditable service with 365 days of lost time.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) lists his awards as the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), Purple Heart, and Combat Infantryman Badge.


10.  On 5 July 1985, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

11.  A letter of character reference was provided from an acquaintance.  In that letter the applicant is described as a model citizen who is outgoing, well-loved, respected in the community, and willing to help in times of need.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  As in effect at that time, it provided the following:

	a.  An honorable discharge was a separation with honor.  The honorable characterization of service was appropriate when the quality of the Soldier's service generally met the standards of acceptable conduct and performance of duty.

	b.  A Soldier would not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by courts-martial or actions under Article 15 of the UCMJ.  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."

	c.  A general discharge was a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	d.  A discharge under other than honorable conditions was an administrative separation from the service under conditions other than honorable.  It might be issued for misconduct or in lieu of trial by court martial when the reason for separation was based upon a pattern of behavior that constituted a significant departure from the conduct expected of Soldiers of the Army.  At the time the discharge was referred to as an undesirable discharge.

	e.  Under chapter 10, 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 Veterans Administration 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 to an individual who was discharged for the good of the service.

13.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant did serve in combat and received the Purple Heart, this service does not outweigh his 11 NJP's (including sleeping on guard duty in a combat zone), two special courts-martial, and 365 days of lost time, a pattern of misconduct that covered his entire period of service.

2.  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.  There is no indication that the request was made under coercion or duress.

3.  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)                                         AR20090021692



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ABCMR Record of Proceedings (cont)                                         AR20090021692



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