IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100006991 


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. 

2.  The applicant states he feels his under other than honorable conditions discharge was justified due to his involvement in drugs and alcohol in Vietnam.  The pressures of the war and the facts that he was 19 years old, away from home for the first time, was more than he could handle.  He has realized the error of his ways and would like to clean up that part of his life.

3.  The applicant provides the following documents:

* A copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), dated 10 September 1970
* An undated self-authored statement
* Four letters of support

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 born on 2 August 1950 and enlisted in the Regular Army for a period of 3 years at 18 years and 6 months of age on 3 February 1969.  He was trained in and held military occupational specialty 64B (Light Vehicle Driver).  The highest rank/grade the applicant attained during his military service was private first class/E-3.

3.  The applicant's records show he served in Vietnam from on or about 23 February 1970 to on or about 9 September 1970.  He was awarded the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and one overseas service bar.

4.  The applicant's records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 6 April 1969, at Fort Benning, GA, for being absent without leave (AWOL) from on or about 6 April 1969 to on or about 10 April 1969.  His punishment consisted of 14 days of restriction and extra duty; 

	b.  on 6 July 1969, at Fort Hood, TX, for wrongfully appropriating a military truck.  His punishment consisted of 14 days of extra duty and restriction;

	c.  on 23 July 1969, at Fort Hood, TX, for being AWOL on or about 18 July 1969.  His punishment consisted of a forfeiture of pay, restriction, and extra duty; and 

	d.  on 11 April 1970, in Vietnam, for wrongfully leaving his post as a sentinel.  His punishment consisted of a reduction and a forfeiture of pay.

5.  On 12 August 1970, he underwent a mental evaluation and was noted as having a passive-aggressive personality, chronic AWOL, inability to perform duties without constant supervision, apathetic attitude, and a history of misconduct.  His rehabilitation potential was determined to be small and he was also cleared for administrative action.  

6.  The facts and circumstances of his 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 10 September 1970 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service as under other than honorable conditions.  He completed 1 year, 6 months, and 21 days of creditable active service and he had 17 days of lost time.

7.  On 26 October 1981, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

8.  He submitted the following documents:

	a.  An undated self-authored statement wherein he admits that he made several mistakes that he now regrets.  However, he has since dedicated his life to the Lord and asks for forgiveness.  He attributes his mistakes to his growing up in an alcoholic family but takes full responsibility for his mistakes.  

	b.  A statement of support, dated 3 January 2010, from an individual who describes the applicant as a church-going, loving, and caring person.

	c.  A character reference letter, dated 5 January 2010, wherein an individual describes the applicant as a hard-working, diligent, punctual, and dependable person.

	d.  A statement, dated 21 December 2009, wherein the author describes the applicant as a gift from God and a jack of all trades.

	e.  A statement of support wherein the author states that he has great respect for the applicant and describes him as a loving and a generous person.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that 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.  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 considered appropriate.

10.  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.  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 10 September 1970 under the provisions of chapter 10 of Army Regulation 635-200 for the convenience of the government, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have 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 the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge appears to accurately reflect his overall record of service.   

4.  The applicant's records show he was 18 years and 6 months of age at the time of his enlistment and 20 years of age at the time of his discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service obligation. 

5.  His overall record of service shows multiple instances of misconduct at various locations, from Fort Benning to Fort Hood and Vietnam.  There is no evidence his service in Vietnam led to his misconduct.

6.  His post-service achievements and the letters of recommendations he provided were noted.  However, 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 him 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)                                         AR20100006991



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100006991



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1