BOARD DATE:	  8 February 2011

		DOCKET NUMBER:  AR20100019797 


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 undesirable discharge to an honorable discharge.

2.  The applicant states that he would like this Board to consider the time he spent in Vietnam.  He adds that he is a war veteran and he hopes it would be grounds for justice to consider his application.

3.  The applicant provides no documentary evidence in support of his application.

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 20 September 1968 for a period of 3 years.  He was trained in and awarded military occupational specialty 52F (Electrician).  The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4.

3.  On 13 March 1970, while assigned to a unit in Vietnam, the applicant was convicted by a General Court-Martial of one specification of assault of his superior officer, a captain, by striking him in the face and about the body with his fist; for assaulting a fellow Soldier by striking him about the body with his fist; for assaulting a superior noncommissioned officer (NCO) by biting off a portion of his ear; and for striking a first lieutenant, his superior commissioned officer by kicking him in the groin with his foot.  The applicant was sentenced to forfeiture of all pay and allowances, confinement at hard labor for 3 years, and a reduction to the private (PV1)/E-1.

4.  Item 38 (Record of Assignments) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows he served in Vietnam from 25 May 1969 through
7 May 1970.  Item 44 of this form further shows he departed absent without leave (AWOL) on 12 July 1971.  On 15 August 1971, he was dropped from the rolls of his unit as a deserter.  On 25 January 1972, the applicant returned from deserter status.  On 28 January 1972, the applicant was placed in pre-trial confinement until 24 February 1972 

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly-constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows he was discharged on 2 March 1972 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 with issuance of an Undesirable Discharge Certificate.  It further shows that at the time he had completed 1 year, 5 months, and 13 days of total active service with 725 days of time lost due to being AWOL and confinement.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  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.

8.  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.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  The applicant's contention that his discharge should be upgraded because he is a Vietnam war veteran was carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not present any evidence which shows that the discharge he received in 1972 was unjust and or unfair.

3.  The evidence of record, however, does shows the applicant was tried and convicted by a general court-martial and he served over 17 months in confinement for four specifications of assault, in which one specification resulted in the maiming of an NCO.  The applicant also went AWOL for more than 200 days and he was dropped from the rolls as a deserter.

4.  In view of the foregoing, there is no basis for granting 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)                                         AR20100019797



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ABCMR Record of Proceedings (cont)                                         AR20100019797



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