IN THE CASE OF:	  

		BOARD DATE:	  9 November 2010

		DOCKET NUMBER:  AR20100012694 


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, in effect, upgrade of his undesirable discharge (UD) to a general discharge (GD).

2.  The applicant states he was lied to by his recruiter.  He asked to be classified as a conscientious objector, but his request was denied without a face-to-face hearing.  He fell through the "military cracks" at the time.  He was never given a hearing for discharge and, being young, he didn't understand what was going on.  He stands by his beliefs then as he does now.  Considering the President gave a blanket pardon to people who deserted this country and that he stayed and took undeserved punishment for his beliefs, he would like the record set straight.  He continues by stating that he loves his country and would defend it to the end, but did not agree with what the country was doing in the late 1960s and 70s.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 on 23 July 1969 for a period of
3 years.  During the applicant's enlistment processing, he signed a DA Form 3286 (Statements for Enlistment) indicating he had read and understood the meaning of the statement "I am not conscientiously opposed, by reason of religious training or belief, to bearing arms or to participating in, or training for war in any form."  

3.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman) and, on or about 3 January 1970, he was assigned to the U.S. Army Overseas Replacement Station, Oakland, CA for processing and reassignment to Vietnam.

4.  The record shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 14 January 1970 for being absent without leave (AWOL) from on or about
3 January to on or about 10 January 1970 and again on 28 January 1970 for being AWOL from on or about 26 January to on or about 28 January 1970.

5.  On 26 January 1970, the applicant submitted an application for discharge as a conscientious objector.  The record shows a hearing was held on 28 January 1970 pursuant to Army Regulation 635-20 (Personnel Separations - Conscientious Objection).  The applicant was advised of his right to be represented by counsel but he declined.  The officer who convened the hearing and the applicant's chain of command recommended disapproval of his request.  On 1 April 1970, a Conscientious Objector Review Board disapproved the applicant's request.  

6.  On 7 October 1970, the applicant was charged with violation of Article 86, UCMJ, for being AWOL from on or about 27 February 1970 to on or about
28 September 1970.  

7.  On 8 October 1970, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-


martial.  Prior to submitting his request, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial which could lead to a bad conduct or dishonorable discharge, of the effects of his request for discharge, and the rights available to him.

8.  In his voluntary request for discharge, the applicant indicated he understood that by requesting discharge the imposition of a bad conduct or dishonorable discharge was authorized.  He further 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 law.  

9.  On 21 October 1970, the separation authority approved the applicant's request for discharge and directed issuance of an Undesirable Discharge Certificate.  On the same date, he was discharged accordingly.  He completed
7 months and 24 days of active service with 216 days of time lost due to AWOL.

10.  The record is void of documentation showing the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 would normally be furnished an individual who was discharged for the good of the Service.  

12.  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.  The evidence of record does not support the applicant's request for upgrade of his UD to a GD.  

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record of service includes two Article 15s and 216 days of time lost.  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.

4.  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)                                         AR20100012694



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ABCMR Record of Proceedings (cont)                                         AR20100012694



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