BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100007728 


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 was told to take the discharge under the provisions of Army Regulation 635-212 (Personnel Separations – Discharge – Unfitness and Unsuitability) for unfitness or face court-martial charges.  He was informed and led to believe if he did not take the discharge, he would face more consequences.

3.  The applicant did not provide 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 16 July 1969 and held military occupational specialty 64A (Light Vehicle Driver).  The highest rank he attained during his military service was private first class/E-3.

3.  His records also show he served in Vietnam from on or about 3 December 1969 to on or about 19 May 1970.  His awards and decorations include the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal, and Expert Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The facts and circumstances surrounding his discharge are not available for review with this case; however, his records contain the following documents:

	a.  Special Orders Number 138 Extract, issued by Headquarters, U.S. Army Support Command, Vietnam, on 18 May 1970 reducing him to the lowest enlisted grade and reassigning him to the U.S. Army Transition Center, Fort Lewis, WA, for separation by reason of an approved discharge from the service with the issuance of an Undesirable Discharge Certificate;

	b.  Special Orders Number 139, issued by Headquarters, U.S. Army Personnel Center, Fort Lewis, WA, on 19 May 1970 discharging him from the Army effective 19 May 1970 with an under other than honorable conditions character of service; and

	c.  a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge), that shows he was discharged on 19 May 1970 under the provisions of Army Regulation 635-212 by reason of unfitness with a character of service as under other than honorable conditions.  This form further confirms he completed 10 months and 4 days of creditable active military service.

5.  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 limitations.

6.  Army Regulation 635-212, then in effect, set forth the policy for administrative separation for unfitness.  It provided that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  frequent incidents of a discreditable nature with civil or military authorities, sexual perversion, drug addiction, an established pattern of shirking, and/or an established pattern showing dishonorable failure to pay just debts.  This regulation also prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic policy for the separation of enlisted personnel.  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.

8.  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 his undesirable discharge should be upgraded.

2.  His record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 19 May 1970 under the provisions of Army Regulation 635-212 by reason of unfitness.

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  It is also presumed his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.

4.  His contention that he was given a choice between a discharge and a court-martial lacks merit as he provided no documentary evidence to substantiate this claim.


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)                                         AR20100007728



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR201