IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100016771 


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 that his previously held rank and grade of specialist five (SP5)/E-5 be restored.

2.  The applicant states he previously held the rank and grade of SP5/E-5 and he desires it to be restored.  He states the characterization of his discharge has been upgraded.  He also states he served in Vietnam as a radioman for a Special forces unit 9 months and the lieutenant in charge of operations told him he was promoting him to the pay grade of E-6 as a field promotion and updated his orders accordingly (by handwriting).  He continues by stating that upon returning to the States he was arrested for impersonating a higher ranking noncommissioned officer (NCO), accused of forgery and placed in the brig for 101 days.  As a result he was discharged for conduct triable by court-martial and he could not make anyone understand that he had received the field promotion.

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty).

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 with a moral waiver on 23 May 1967.  He completed his basic training at Fort Ord, California and his advanced individual training as a radio relay and carrier operator at Fort Gordon, Georgia before being transferred to a signal company in Wurzburg, Germany.  

3.  On 13 April 1968 he reenlisted for a period of 6 years.  He was advanced to the pay grade of E-4 on 8 November 1968.

4.  On 29 March 1969, he was transferred to Vietnam for assignment to Company C, 41st Signal Battalion.  Although the reduction instrument is not contained in the available records, his records show he was reduced to pay grade E-1 for misconduct on 18 November 1969.  He departed Vietnam on
28 March 1970 and he was transferred to Fort Riley, Kansas. 

5.  On 8 September 1970, he went absent without leave (AWOL) and remained absent in a desertion status until he was apprehended by civil authorities in Riverside, Missouri for possession of marijuana.  He was convicted by civil authorities and sentenced to confinement for 6 months.  He was returned to military control at Fort Riley on 18 December 1970 and charges were preferred against him on 11 January 1971 for being AWOL from 8 September to
18 December 1970.

6.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial.  In his request he stated he understood that he may be issued an undesirable discharge, that he understood the prejudice he may be subjected to as a result of such a discharge, that he understood he would be deprived of many or all benefits and that he was not subjected to coercion by anyone to submit such a request.  He also elected to submit a statement in his own behalf whereas he asserted that it would be best to discharge him because he used narcotics and “Mary Jane” and he simply could not adapt to military life or support a family on military pay.

7.  The appropriate authority (a major general) approved his request on 10 March 1971 and directed that the applicant be furnished an Undesirable Discharge Certificate.

8.  Accordingly, on 18 March 1971, he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an Undesirable Discharge Certificate.  He had completed 3 years, 6 months, and 
16 days of total active service and he had 111 days of lost time due to being AWOL.

9.  On 17 May 1975, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge and on 18 December 1979 the ADRB voted to upgrade his discharge to a general discharge and to restore his rank to the pay grade of E-3.

10.  A review of his records failed to show any evidence that he was ever advanced beyond the pay grade of E-4. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions have been noted and found to lack merit as they are not supported by either the evidence submitted with his application or the evidence of record. 

2.  Therefore, in the absence of evidence to the contrary, there appears to be no basis to grant the applicant’s request.

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)                                         AR20100016771



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ABCMR Record of Proceedings (cont)                                         AR20100016771



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