IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100000729 


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 upgrade of his undesirable discharge to a general discharge.

2.  The applicant states:

* he believes the record to be in error since he was wounded three times during his tour of duty in Vietnam
* his discharge was based on one isolated incident

3.  The applicant provides no documentary evidence in support of his application.

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 in the Regular Army on 28 October 1965 for a period of 3 years.  He trained as a clerk and he was awarded military occupational specialty (MOS) 71A.  He was honorably discharged on 2 November 1966 for immediate reenlistment.  He reenlisted on 3 November 1966 for a period of
4 years.  During this period of service he trained as a light weapons infantryman and he was awarded MOS 11B.  He arrived in Vietnam on 16 January 1967.

3.  On 29 November 1967, while in Vietnam, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay.

4.  The applicant was promoted to staff sergeant on 26 November 1968.

5.  On 8 January 1969, while in Vietnam, charges were preferred against the applicant for conspiring with a first lieutenant to commit larceny and larceny of government property (stealing a rough terrain fork lift truck, valued at $34,765.00).  Trial by general court-martial was recommended.

6.  On 5 February 1969, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated in his request that he understood that he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

7.  On 4 March 1969, the separation authority approved the applicant's request for discharge and directed that he be furnished an undesirable discharge.

8.  The applicant was transferred to the United States on 17 March 1969.

9.  Accordingly, the applicant was discharged with an undesirable discharge on 19 March 1969 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 
3 years, 4 months, and 22 days of total active service.


10.  On 1 February 1972, the Army Discharge Review Board denied the applicant's request for a discharge upgrade to a general discharge.

11.  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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service.

12.  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.  Although the applicant contends his discharge was based on one isolated incident, evidence of record shows he was a staff sergeant who conspired with a first lieutenant to commit larceny of government property (fork lift) in Vietnam, valued over $34,000.00.  In addition, he had one nonjudicial punishment.

2.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.


4.  The applicant's record of service during his last enlistment, which included his combat service in Vietnam and awards and decorations, included one nonjudicial punishment and serious offenses for which general court-martial charges were preferred.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant 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.



      ___________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)                                         AR20100000729



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ABCMR Record of Proceedings (cont)                                         AR20100000729



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