IN THE CASE OF:	  

		BOARD DATE:	  19 August 2010

		DOCKET NUMBER:  AR20100007241 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states:

* he did not get the proper help he needed after his combat exposure in Vietnam
* he is living a clean, moral life now and has been for the past 20 years

3.  The applicant provides:

* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 24 August 1970
* DD Form 214 (Report of Separation from Active Duty) for the period ending 7 December 1977 
* letter, dated 2 August 1977, from the U.S. Army Legal Services Agency, Falls Church, Virginia
* General Court-Martial Order Number 113, dated 2 November 1977

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 21 August 1967 for a period of 3 years.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 11B (light weapons infantryman).  He served in Vietnam from 5 February 1968 to 17 February 1969.  On 24 August 1970, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining obligation.

3.  The applicant again enlisted in the Regular Army on 23 January 1973 for a period of 3 years.  He was honorably discharged on 22 January 1975 for immediate reenlistment.  He reenlisted on 23 January 1975 for a period of 4 years.

4.  On 13 July 1976, the applicant was convicted in accordance with his plea by a general court-martial of possessing heroin.  He was sentenced to be confined at hard labor for 8 years, to forfeit all pay and allowances, to be reduced to E-1, and to be separated from the service with a bad conduct discharge.  On 29 July 1976, the convening authority approved the sentence, but suspended the portion of the sentence in excess of a bad conduct discharge, confinement at hard labor for 1 year, total forfeitures, and reduction to E-1 until 12 July 1977.

5.  On 25 July 1977, the U.S. Army Court of Military Review set aside the findings and sentence and ordered a rehearing.

6.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, on 2 November 1977, the separation authority approved the applicant's request for discharge for the good of the service (dated 20 October 1977) and directed his discharge under other than honorable conditions.

7.  On 2 November 1977, the convening authority dismissed the general court-martial charge and specification due to the applicant's administrative discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  On 8 December 1977, the general court-martial proceedings (new trial) were terminated by withdrawal of the charge and specification by the convening authority.

8.  The applicant was discharged under other than honorable conditions on 7 December 1977 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 7 years, 10 months, and 8 days of creditable active service.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  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.

11.  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 he did not get the proper help he needed after his combat exposure in Vietnam, the evidence of record shows he served 18 months of honorable service after his tour of duty in Vietnam.  In addition, it appears he was found qualified for enlistment in the Regular Army on 23 January 1973 and he then served for 3 1/2 years before his general court-martial in July 1976.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

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)                                         AR20100007241



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)