IN THE CASE OF:	  

		BOARD DATE:	  15 February 2011

		DOCKET NUMBER:  AR20100020235 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states his company commander did not want him in the unit because he was a combat veteran and the commander was not.  He goes on to state he was unaware he was being discharged under other than honorable conditions.

3.  The applicant provides:

* a two-page handwritten letter explaining his application
* a letter from his son
* a letter from a school principal
* copies of his DD Forms 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 in Memphis, Tennessee, on 1 December 1966 for a period of 3 years.  He completed basic training at Fort Campbell, Kentucky, and advanced individual training as a radio operator at Fort Knox, Kentucky, before being transferred to Fort Hood, Texas, for his first duty assignment.

3.  On 16 November 1967, he was transferred to Vietnam for assignment to Advisory Team 51.  He was advanced to pay grade E-4 on 28 May 1968 and to pay grade E-5 on 19 October 1968.  He departed Vietnam on 12 November 1968 for assignment to Fort Hood.

4.  On 17 January 1969, he was honorably discharged for the purpose of immediate reenlistment.  He completed 2 years, 1 month, and 17 days of active service.  On 18 January 1969, he reenlisted for a period of 6 years and a variable reenlistment bonus.

5.  Although the reduction instrument is not present in the available records, his records show he was reduced to pay grade E-4 on 10 March 1969.

6.  He was transferred to Korea on 23 May 1969 and served there until 22 June 1970 when he was transferred to Vietnam.  He served in Vietnam until 9 June 1971 when he was transferred to Germany for assignment to an engineer company in Aschaffenburg, Germany, on 13 August 1971.

7.  On 18 May 1972, nonjudicial punishment was imposed against him for willfully disobeying a lawful order from a superior noncommissioned officer.

8.  The facts and circumstances pertaining to his administrative discharge are not present in the available records as they were provided to the Veterans Administration (VA) on 21 August 1986.  However, the available information shows charges were preferred against him for:


* disobeying a lawful order from a superior noncommissioned officer
* disobeying a lawful order from a superior commissioned officer
* stealing a wallet and cigarette lighter from another Soldier
* possessing opium and amphetamines
* securing drug paraphernalia in his room

9.  On 3 October 1973, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He completed 6 years, 10 months, and 3 days of total active service of which 4 years, 2 months, and 2 days were served overseas.

10.  He applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 8 March 1975.  He requested that his discharge be upgraded to an honorable discharge based on his service record.  On 14 May 1975, the ADRB determined his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request.

11.  The ADRB again reviewed his discharge on 2 October 1979 and again denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

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.  In the absence of evidence to the contrary, it must be presumed the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.

4.  The applicant's contentions, supporting documents, and record of service have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the serious nature of his offenses and the absence of mitigating circumstances.  His service simply did not rise to the level of an honorable or a general 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)                                         AR20100020235



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ABCMR Record of Proceedings (cont)                                         AR20100020235



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