BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021727 


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 under other than honorable conditions discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he had gall bladder surgery in Germany in 1973 wherein he almost died.  He was taking morphine daily for over 2 weeks and became addicted.  It was the first time his doctor had performed this kind of surgery.  He then sought reassignment back to the States where he knew he could receive better medical care.  He states his commander signed his transfer and leave papers.  When he went to the Pentagon to get his new orders, he was refused and given no explanation so he went absent without leave (AWOL). 
He knew he needed mental and physical help and decided to seek it somewhere else.

3.  He also states he served his country proudly in Vietnam, in Germany, and at Fort Eustis.  Additionally, he has been involved with The American Legion and held the position of adjutant.  He has been a council member and a former mayor.  He only asks for a second chance.  His health has been failing fast; he is disabled and currently has multiple medical problems.

4.  The applicant did not provide any additional documentary evidence.

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 records show he was inducted into the Army of the United States on 26 July 1966 and held military occupational specialty 95B (Military Police).  He was honorably discharged on 3 August 1967 and subsequently enlisted in the Regular Army on 4 August 1967 for a period of 6 years.  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  His records show he served in Vietnam from on or about 4 May 1969 to on or about 10 November 1970 and in Germany from on or about 6 August 1972 to on or about 16 March 1973.

4.  His awards and decorations include the National Defense Service Medal, Army Commendation Medal, Vietnam Service Medal with five bronze service stars, Republic of Vietnam Campaign Medal with Device (1960), Sharpshooter Marksmanship Qualification Badge with Rifle and Pistol Bars, Expert Marksmanship Qualification Badge with Rifle Bar, and two overseas service bars.

5.  On 9 September 1968, he pled guilty at a special court-martial to one specification of being AWOL from on or about 14 May 1968 to on or about 23 July 1968.  The court sentenced him to 2 months of hard labor, a forfeiture of $70.00 pay per month for 2 months, and a reduction to private/E-1.  His sentence was approved on 13 September 1968.

6.  On 11 October 1968, he again pled guilty at a special court-martial to one specification of being AWOL from on or about 14 September 1968 to on or about 27 September 1968.  The court sentenced him to confinement at hard labor for 6 months.  His sentence was approved on 11 October 1968.

7.  On 24 February 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for having a local national in his room.  His punishment consisted of a suspended reduction, a forfeiture of pay, and extra duty.

8.  On 16 March 1972, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 16 March 1973 to on or about 17 April 1973.  His punishment consisted of an oral reprimand, a suspended reduction, a forfeiture of pay, correctional custody, restriction, and extra duty.  Furthermore, on 26 June 1973, his suspended reduction was vacated.

9.  On 6 September 1973, he pled not guilty at a special court-martial to two specification of being AWOL from on or about 25 May 1973 to on or about 20 June 1973 and on or about 20 June 1973 to on or about 14 August 1973.  The court found him guilty and sentenced him to 60 days of extra duty and a reprimand.  His sentence was approved on 14 September 1973.

10.  On 27 September 1973, he departed his unit in an AWOL status and he was subsequently dropped from the Army rolls.  He returned to military control on 18 January 1975.

11.  On an unknown date in 1975, court-martial charges were preferred against him for what appears to be one specification of being AWOL from on or about 27 September 1973 through on or about 18 January 1975.  A copy of the charge sheet is not available for review with this case.

12.  On 3 February 1975, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

13.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge.  He also indicated he was making this request of his own free will and he had not been subjected to any coercion.  He indicated he had been advised of the implications that were attached to his request.  He further acknowledged he understood if the discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.

14.  On 4 February 1975, his immediate commander and intermediate commanders recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

15.  On 16 February 1975, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Undesirable Discharge Certificate and be reduced to the lowest enlisted grade.  On 26 February 1975, the applicant was accordingly discharged.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he was discharged for the good of the service in lieu of trial by court-martial with an Undesirable Discharge Certificate.  This form further confirms he completed a total of 6 years, 2 months, and 10 days of creditable active military service and he had 388 days of lost time prior to the normal expiration of his term of service (ETS) and 489 days of lost time subsequent to his ETS.

16.  On 3 January 1979, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

17.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  At the time, an undesirable discharge was normally issued.

18.  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 contends that his discharge should be upgraded.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  His service in Vietnam and Germany as well as his current medical condition were considered; however, his extensive history of misconduct, including multiple NJP's and courts-martial as well as an extensive history of AWOL, overshadows his achievements.  Furthermore, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general discharge.

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.



      _________________________
                 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)                                         AR20090021727



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021727



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1