IN THE CASE OF:	  

		BOARD DATE:	  3 February 2011

		DOCKET NUMBER:  AR20100018247 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states he feels he should have an honorable discharge because of his military awards and decorations.

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 enlisted in the Regular Army on 23 August 1967.  After completing initial entry training, he was awarded military occupational specialty 11B (Light Weapons Infantryman), and assigned duty in Vietnam.  He served in Vietnam from on or about 13 May 1968 to 13 May 1969.  

3.  His DD Form 214 (Report of Separation from Active Duty) shows he received the following awards:

* Marksman Marksmanship Qualification Badge with Rifle and Machine Gun Bar
* Combat Infantryman Badge
* Army Commendation Medal
* Air Medal
* Purple Heart
* Two Overseas Service Bars
* Vietnam Service Medal
* Republic of Vietnam Campaign Medal 

4.  General orders show he was awarded the Air Medal for meritorious achievement and the Army Commendation Medal for meritorious service.  

5.  The record is void of documentation showing the applicant received awards for valor or heroism during his military service.

6.  Special Court-Martial Order Number 115, issued by Headquarters, 2d Training Brigade, U.S. Army Training Center, Infantry, Fort Benning, GA, on 7 November 1967, shows he was found guilty of being absent without leave (AWOL) from on or about 8 October to 23 October 1967.  He was sentenced to be confined at hard labor for 6 months (suspended) and to a forfeiture of $60 pay for 6 months (reduced to $30 pay per month).  

7.  On 26 July 1969, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for being AWOL from on or about 17 July to
21 July 1969.

8.  Special Court-Martial Order Number 428, issued by Headquarters, Fort McPherson Troop Command, on 5 June 1970, shows he was found guilty of being AWOL from on or about 2 September 1969 to 6 May 1970.  He was sentenced to be confined at hard labor for 2 months (suspended), a forfeiture of $90 pay for 1 month, and to be reduced to the rank of private/E-1.

9.  Special Court-Martial Order Number 64, issued by Headquarters Command, Fort McPherson, GA, on 5 August 1970, vacated the suspended portion of his sentence to confinement at hard labor.

10.  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 1 April 1975.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He had completed 
3 years and 21 days of total active service, with 1,661 days of time lost.

11.  The available evidence shows that initially he was issued an undesirable discharge.  However, in 1979, the Army Discharge Review Board (ADRB) voted to grant him partial relief in response to his request to upgrade his character of service to honorable and upgraded his character of service to under honorable conditions.

12.  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.

13.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 general discharge to a fully honorable discharge.

2.  The record does not show he received awards and decorations rising to a level that overcomes his conduct prior to and following his service in Vietnam.  

3.  The applicant's service, which includes NJP and two special court-martial convictions for being AWOL and 1,661 days of time lost, clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service insufficiently meritorious to warrant an honorable discharge.

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)                                         AR20100018247



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018247



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1