BOARD DATE:	  10 August 2010

		DOCKET NUMBER:  AR20100007944 


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 to honorable.

2.  The applicant states: 

* He served his country for 12 years including combat service in Vietnam
* In the summer of 1981 his wife left him and his young son and there was no one to care for his son 
* It was an emergency
* He tried to get a furlough but to no avail
* Several times his son got sick and he was called out of the field
* His platoon leader started making comments and gestures that his son was causing problems
* He had words with his platoon leader but there was never any physical contact between them
* The verbal exchange between them resulted in his platoon leader bringing charges against him  and trial by court-martial with jail time if convicted
* No one in his chain of command ever tried to help or resolve the problem    

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 was inducted into the Army of the United States on 18 June 1969.  He served in Vietnam from 4 March 1970 to 23 January 1971.  On 
23 January 1971, he was released from active duty and transferred to the U.S. Army Reserve Control Group (Annual Training) to complete his remaining service obligation.  He enlisted in the Regular Army on 25 February 1974 for a period of 3 years.  On 15 June 1976, he was honorably discharged for immediate reenlistment.  He reenlisted on 16 June 1976 for a period of 6 years.  He attained the rank of staff sergeant on 29 December 1978.  On 15 March 1982, he was honorably discharged for immediate reenlistment.  He reenlisted on 16 March 1982 for a period of 6 years.

3.  On 15 July 1982, the applicant was convicted by a special court-martial of disobeying two lawful commands and failing to go at the time prescribed to his appointed place of duty.  He was sentenced to be reduced to E-5 and to forfeit $125.00 per month for 4 months.  On 1 September 1982, the convening authority approved the sentence. 

4.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  The charge sheet is not available.

5.  On 14 September 1982, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

6.  The applicant was discharged under other than honorable conditions on 
29 September 1982 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 10 years, 4 months, and 11 days of creditable active service.

7.  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.

8.  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, a discharge under other than honorable conditions is normally considered appropriate.

9.  Army Regulation 635-200, 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.

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:

The applicant's contentions were carefully considered.  However, 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)                                         AR20100007944





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)