IN THE CASE OF:	  

		BOARD DATE:	  20 October 2010

		DOCKET NUMBER:  AR20100011424 


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 an honorable discharge.

2.  The applicant states the circumstances surrounding and heading up to his discharge by a General Court-Martial were a direct result of his arduous service in Vietnam.  He further states his life has changed dramatically since he left the service.  He has spent his life helping others through volunteer work with the American Red Cross. 

3.  The applicant provides in support of his application his Red Cross Disaster Services Human Resources’ job history and a letter from his spouse.

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.  On 13 July 1966, the applicant’s enlisted in the Regular Army for a period of 3 years.  Records show the applicant was 17 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 76A (Supply Clerk).  The highest grade the applicant attained was private first class/pay grade E-3. 

3.  On 20 March 1967, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for having in his possession an invalid pass.  The punishment consisted of a forfeiture of $21.00 pay, restriction for 14 days and extra duty for 14 days.

4.  On 22 May 1967, the applicant received NJP under Article 15, UCMJ, for falsifying an official document.  The punishment consisted of a forfeiture of $20.00 pay, restriction for 14 days and extra duty for 14 days.

5.  On 23 October 1967, the applicant received NJP under Article 15, UCMJ, for disobeying a lawful order from a superior non commissioned officer on two occasions.  The punishment consisted of a reduction to the grade of private/pay grade E-2, restriction for 14 days and extra duty for 14 days.

6.  On 6 April 1968, the applicant received a summarized NJP under Article 15, UCMJ, for failing to go at the prescribed time to his appointed place of duty.  The punishment consisted of restriction for 14 days.

7.  On 14 April 1968, the applicant received a NJP under Article 15, UCMJ, for breaking restriction.  The punishment consisted of reduction to the grade of private/pay grade E-2, forfeiture of $23.00 pay, restriction for 14 days, and extra duty for 14 days.

8.  On 12 July 1969, the applicant was convicted by a special court-martial for being disrespectful in language toward his superior non commissioned officer.  He was sentenced to be reduced to private/pay grade E-1, forfeiture of $100.00 pay for 3 months, and confinement for hard labor for 3 months.

9.  On 4 December 1969, charges was preferred against the applicant for one specification of being absent without leave from 25 October 1969 to                   23 November 1969; two specification of disobeying a superior commissioned officer, one specification of threating a superior commissioned officer, two specifications of being disrespectful in language toward two superior non commissioned officer, and one specification of disobeying a superior non commissioned officer.

10.  On 8 December 1969, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant request for a 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.  

11.  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.

12.  On 24 January 1970, 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.

13.  The applicant’s DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 5 February 1970 in accordance with chapter 10, Army Regulation 635-200, for the good of the service with service characterized as under other than honorable conditions.  At the time he had completed 3 years, 5 months, and 23 days of net active service this period and he have 31 days of lost time.

14.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

15.  In support of his request the applicant provides his Red Cross Disaster Services Human Resources’ job history and a letter from his spouse.

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.

    c.  Army Regulation 625-200, 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 that his under other than honorable conditions discharge should be upgraded.  He states the circumstances surrounding and heading up to his discharge by a General Court-Martial were a direct result of his arduous service in Vietnam.  The board found no evidence nor did the applicant present any evidence to support his claim that his discharge was due to an arduous service in Vietnam. 

2.  His records show he was charged with the commission of several offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge.

4.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the 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)                                         AR20100011424





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ABCMR Record of Proceedings (cont)                                         AR20100011424



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