IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100016016 


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 under other than honorable conditions (UOTHC) discharge to a general discharge (GD).  

2.  The applicant states, in effect, he was told he would be returned to the United States within 5 days if he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

3.  The applicant provides no documentation in support of 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 into the Army of the United States on 9 July 1969.  He was trained in and awarded military occupational specialty 64B (Heavy Vehicle Driver). 

3.  On 21 October 1969, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 14 October to on or about 20 October 1969.  

4.  Special Court-Martial Order Number 30, issued by Headquarters, School Brigade (Provisional), United States Army Aviation School Element, Hunter Army Airfield, GA, on 19 December 1969, shows the applicant was found guilty of two specifications of being AWOL from on or about 1 November to 12 November 1969 and from on or about 19 November to on or about 21 November 1969.  He was sentenced to be confined at hard labor for 2 months.  The sentence was suspended for 2 months, with the provision that it would be remitted after 2 months unless the suspension was sooner vacated.

5.  Special Court-Martial Order Number 7, same headquarters, issued on 16 February 1970, vacated the suspension of the applicant's sentence and directed the suspended portion of the sentence be executed.  

6.  Special Court-Martial Order Number 219, issued by Headquarters, Special Troops, U.S. Army School/Training Center and Fort Gordon, GA, on 9 March 1970, suspended the unexecuted portion of the applicant's sentence to confinement.  

7.  A DA Form 20 (Enlisted Qualification Record) shows in item 38 (Record of Assignments) the applicant was assigned for duty with the 512th Transportation Company in Vietnam on or about 24 August 1970 and served in this unit until on or about 12 January 1971 when he was returned to the United States for separation processing.  

8.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a properly constituted DD Form 214 for the period ending 15 January 1971.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  

9.  His DD Form 214 further shows he received a UOTHC discharge and that he completed 1 year, 4 months, and 23 days of total active service, with 44 days of time lost.

10.  On 5 September 1979, The Adjutant General informed the applicant that the Army Discharge Review Board had denied his application to change the type and nature of his discharge.  

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 GD 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's request for upgrade of his UOTHC discharge to a GD was carefully considered but is not supported by the available evidence.

2.  Although the applicant's separation packet is not available, it is presumed he was charged with the commission of an offense punishable under the UCMJ 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.

3.  Based on his record of indiscipline, which includes a special court-martial conviction for being AWOL, the applicant's 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, the applicant is not entitled to a GD.



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)                                         AR20100016016





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100016016



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1