IN THE CASE OF:
BOARD DATE: 28 September 2010
DOCKET NUMBER: AR20100009409
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 to a general discharge.
2. The applicant states he was a good Soldier and loves his country.
3. The applicant provides no additional documents 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's record shows he enlisted in the Regular Army and entered active duty on 22 December 1969. He served 10 months and 7 days and was honorably discharged on 28 October 1970 for immediate reenlistment the following day. He served in Vietnam from 25 January 1971 to 1 August 1971.
3. On 13 March 1971, nonjudicial punishment (NJP) was imposed against the applicant for being absent from his unit from 1900 hours on 10 March 1971 to 0600 hours on 11 March 1971. His punishment consisted of a forfeiture of $20.00 for 1 month and 7 days of extra duty.
4. On 4 May 1971, NJP was imposed against the applicant for being in an off-limits area. His punishment consisted of reduction to the grade of E-3, a forfeiture of $25.00 for 1 month, and 14 days of extra duty.
5. The charge sheet or the facts and circumstances pertaining to the applicant's discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel), were not contained in his available military records.
6. The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged for the good of the service in lieu of a trial by court-martial on 2 August 1971 under the provisions of Army Regulation 635-200, chapter 10. The applicant completed 1 year, 7 months, and 11 days of total active service.
7. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.
8. 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 a 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 3-7b, 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 a copy of the applicant's chapter 10 discharge packet is not in his available records, the presumption of regularity must be applied. 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 failed to submit evidence that would satisfy this requirement.
2. The applicant's record of service included two NJPs. His discharge under the provisions of chapter 10, Army Regulation 635-200, indicates that he voluntarily requested discharge in lieu of a trial by court-martial, although the specific offense(s) is/are unknown. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct renders his service as unsatisfactory. Therefore, 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) AR20100009409
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