IN THE CASE OF:	  

		BOARD DATE:	    26 August 2010

		DOCKET NUMBER:  AR20100011580 


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 discharge.

2.  The applicant states his Army career was unjust.  He received no training and no military occupational specialty (MOS).  He received no education.  He wishes to appear before the Board to speak about his unfair discharge. 

3.  The applicant provides no additional documents to support his request.

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 on 14 May 1971.  He completed basic and advanced individual training and was awarded MOS 11B1O (Light Weapons Infantryman) and the Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  He was posted to Vietnam and arrived on 7 December 1971.

4.  On 14 February 1972, the applicant had received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice for absence without leave (AWOL) for 3 days.  He received another NJP for another 3-day AWOL in April 1972.

5.  On 15 August 1972 the applicant pled guilty at a special court-martial to being AWOL on 11 and 12 May 1972, two instances of willful disobedience, and three instances of breaking restriction.  He was found guilty on all charges and specifications.  The adjudged sentence included confinement for 4 months, forfeiture of $150 pay per month for 4 months, and a bad conduct discharge.

6.  The convening authority approved the findings and sentence but the bad conduct discharge and the confinement in excess of 30 days was suspended for 6 months.  The forfeitures were to be applied to pay becoming due after the convening authority's final action.  

7.  His conduct and efficiency ratings for his tour in Vietnam were marked as "unsatisfactory" and, on 15 September 1972, the applicant returned to the United States.  The unserved confinement, forfeitures, and the bad conduct discharge were remitted on 2 November 1972.

8.  On 20 February 1973, charges were preferred against the applicant for being AWOL from 3 January to 20 February 1973 and for assault by striking a sergeant.  

9.  The applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.  He indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and state laws.


10.  The separation authority approved the request and directed that an under other than honorable conditions discharge be issued.  On 21 March 1973, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 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.  

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishment for offenses under the UCMJ.  A punitive discharge is authorized for any AWOL in excess of 30 days and for any assault involving battery.

13.  On 23 June 1977, the Army Discharge Review Board (ADRB) considered the applicant's overall record and his act of violence against the sergeant.  The ADRB panel members determined that the latter constituted a compelling reason to the contrary and denied the applicant's request to upgrade his discharge under the extraordinary provisions of the Department of Defense Special (DOD) Discharge Review Program (SDRP).  On 8 August 1979 the ADRB declined to upgrade the applicant's discharge under the historically consistent uniform standards required by Public Law 95-126.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

15.  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.

16.  Army Regulation 15-185 governs operations of the Army Board for Military Corrections (ABCMR).  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.   

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his Army career was unjust.  He received no training and no MOS.  He received no education.  He wishes to appear before the Board to speak about his unfair discharge. 

2.  Notwithstanding his assertions, the applicant was trained as an infantryman and awarded an infantry MOS.  

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  The character of the discharge is commensurate with his overall record.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  

5.  There is no documentation to support the applicant's contentions and no rationale to support the conclusion that those alleged circumstances would warrant the requested relief.

6.  Based upon the facts in this case, the applicant's personal appearance before the Board is not required. 

7.  In view of the foregoing 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)                                         AR20100011580





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ABCMR Record of Proceedings (cont)                                         AR20100011580



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