IN THE CASE OF:	  

		BOARD DATE:	  31 August 2010

		DOCKET NUMBER:  AR20100007802 


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 general discharge to an honorable discharge.

2.  The applicant states his original discharge indicated an honorable discharge.

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 for a period of 3 years on 1 December 1969.  Records show the applicant was 19 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 36C (Wire System Installer).  The highest grade the applicant attained was specialist/pay grade E-4.

3.  On 17 September 1970, the applicant was discharged for immediate reenlistment.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he received a character of service of honorable for the 9 months and 17 days he served.  On 18 September 1970, the applicant reenlisted for 3 years for an assignment to the Republic of Vietnam.

4.  On 25 March 1971, the applicant received nonjudical punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for disrespecting a superior commissioned officer and disobeying a lawful general regulation.  His punishment consisted of forfeiture of $15.00 pay and 14 days of extra duty.  He appealed the punishment and the appellate authority denied his appeal.

5.  On 13 July 1971, the applicant received NJP under Article 15, UCMJ, for disobeying a commissioned officer.  The punishment consisted of reduction to private first class/pay grade E-3 (suspended for 60 days) and forfeiture of $40.00 pay.  On 27 July 1971, the suspension of the punishment of reduction to private first class/pay grade E-3 was vacated by the company commander.

6.  On 27 September 1971, the applicant received NJP under Article 15, UCMJ, for failing to go at the prescribed time to his appointed place of duty and disrespecting a senior noncommissioned officer.  His punishment consisted of reduction to private/pay grade E-2, forfeiture of $36.00 pay per month for 1 month, and 14 days of extra duty.

7.  On 19 January 1972, the applicant received another NJP under Article 15, UCMJ, for being absent without leave (AWOL) from 20 December 1971 through 13 January 1972.  The punishment consisted of forfeiture of $74.00 pay and 14 days of extra duty.

8.  On 17 March 1972, charges were preferred against the applicant for possession of a narcotic, heroin.

9.  On 30 March 1972, the applicant consulted with counsel and voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subjected to coercion with respect to this request for discharge.

	a.  He was afforded the opportunity to consult with counsel.  He was advised that he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	b.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant did not submit a statement in his own behalf.

10.  On 17 April 1972, charges were again preferred against the applicant for being AWOL from 5 April 1972 to 11 April 1972.

11.  On 18 April 1972, the company commander requested that the additional charge of AWOL be forwarded and included in the original charges for trial by a special court martial.

12.  The immediate commander and intermediate commanders recommended approval of the applicant's request for discharge with a characterization of service of under other than honorable conditions.

13.  On 3 May 1972, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 635-200, with a character of service of under other than honorable conditions.

14.  The applicant's DD Form 214 shows he was discharged from his second enlistment on 24 May 1972 in accordance with chapter 10, Army Regulation 
635-200, for the good of the service with his service characterized as under other than honorable conditions.  At the time he had completed a total of 2 years, 5 months, and 4 days of net active service.  The DD Form 214 also shows the applicant had 24 days of lost time.

15.  The applicant applied to the Army Discharge Review Board (ADRB) for upgrade of his discharge within its 15-year statute of limitations.  On 20 September 1977, the board granted the applicant's request for an upgrade of his discharge to a general under honorable conditions discharge.

16.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate, under other than honorable conditions, would normally be furnished to an individual who was discharged for the good of the service.

	b.  Army Regulation 625-200, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that his original discharge had indicated an honorable discharge.  The Board notes the applicant received an honorable discharge while serving in the Regular Army from 1 December 1969 to 17 September 1970 during his first enlistment, for a total of 9 months and 17 days.

2.  On 18 September 1970, the applicant reenlisted for 3 years and an assignment to the Republic of Vietnam.  The evidence shows the applicant received five Article 15's during the period of service under review.  Although the ADRB upgraded his discharge to general, the evidence of record clearly shows the applicant's record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel and, therefore, the applicant is not entitled to an honorable discharge.

3.  The applicant's request for separation under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Therefore, in view of all of the above, there is no basis for granting the applicant's 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)                                         AR20100007802



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ABCMR Record of Proceedings (cont)                                         AR20100007802



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