IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100000557 


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 an upgrade of his under other than honorable conditions discharge to a fully honorable discharge.

2.  The applicant states that he was stationed in Germany and got hooked on drugs.  He went to the hospital and received counseling.  Upon his discharge, he was told his undesirable discharge would turn into an honorable discharge within 6 months if he stayed out of trouble with the law.  Accordingly, he decided to take the undesirable discharge.  He had told officials that if his discharge was not going to be honorable, they should put him back in the Army.  He was guaranteed it would be.  He feels he deserves an honorable discharge.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 4 April 1973, and correspondence from the Social Security Administration.

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 28 May 1968 and held military occupational specialty 94B (Cook).  He was honorably discharged on 30 March 1969 for the purpose of immediate enlistment in the Regular Army.

3.  His records show he executed a 6-year enlistment in the Regular Army on 31 March 1969 and subsequently served in Panama from on or about 25 May 1969 to on or about 21 December 1970 and Germany from on or about 17 April 1972 to on or about 21 March 1973.  The highest rank/grade he attained during his military service was specialist four/E-4.

4.  The applicant's records further show he was awarded the National Defense Service Medal, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14).

5.  On 22 July 1969, he pled not guilty at a special court-martial to one specification of stealing government currency.  The court found him guilty and sentenced him to confinement at hard labor for 4 months, a forfeiture of $73.00 pay per month for 4 months, and a reduction to private (PV1)/E-1.  The convening authority approved his sentence on 6 August 1969.

6.  On 22 August 1969, the unexecuted portion of this sentence was suspended for a period of 4 months and subsequently ordered remitted.

7.  On 9 November 1970, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to show up at his appointed place of duty and failing to report to his appointed place of duty.  His punishment consisted of a reduction to PV1/E-1 and a forfeiture of $15.00 pay.

8.  On 25 November 1970, his immediate commander initiated a Bar to Reenlistment Certificate against him citing his NJP, his court-martial, and his intentional shirking of duty and unwillingness to cooperate with his superiors.  He was furnished with a copy of this bar, but he elected not submit a statement on his own behalf.  The bar was ultimately approved by the approval authority.

9.  On 11 March 1971, he again accepted NJP under the provisions of Article 15 of the UCMJ for being derelict in the performance of his duties and being absent without leave from on or about 2 March 1971 to on or about 8 March 1971.  His punishment consisted of a reduction to private/E-2 (suspended), a forfeiture of $15.00 pay, and 14 days of restriction and extra duty.

10.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 4 April 1973 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions. This form also shows he completed a total of 4 years, 9 months, and 13 days of creditable active service and he had 25 days of lost time.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

12.  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, an under other than honorable conditions discharge is normally considered appropriate.

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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 4 April 1973 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

4.  The Army has never had a policy whereby a discharge is upgraded due to passage of time.  There is no evidence in the available records nor did the applicant provide documentation to warrant an upgrade of his discharge.

5.  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.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20100000557



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100000557



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1