IN THE CASE OF:	  

		BOARD DATE:	 8 February 2011 

		DOCKET NUMBER:  AR20100020493 


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 he was refused medical treatment at the Department of Veterans Affairs (VA) hospital because of his discharge.  He was home on leave and the Red Cross refused to request an extension for him in January 1970 when his father had a heart attack and was terminally ill.  He only wanted a few more days leave and then he was going to return to his unit in Vietnam.

3.  The applicant provided no additional evidence. 

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's record shows he enlisted in the Regular Army on 27 February 1968 and he held military occupational specialty 51B (Carpenter).  He served in Vietnam from 22 July 1968 through 15 December 1969. 

3.  On 5 June 1969, he received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for willfully and wrongfully destroying, by shooting, a domestic fowl.

4.  On 4 June 1971, the Adjutant General of the Army responded to his sister's letter to President Nixon asking for assistance in ensuring the applicant was discharged from the Army.  He stated the applicant was in pretrial confinement at Fort Knox, KY, awaiting trial by court-martial for being absent without leave (AWOL) on the following dates:

* 15 February - 30 June 1970
* 3 - 5 July 1970
* 10 - 12 July 1970
* 28 July - 12 August 1970
* 21 - 23 August 1970
* 11 September 1970 - 29 March 1971
* 2 April - 27 May 1971

5.  The specific facts and circumstances surrounding his discharge are not available for review with this case.  However, his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 6 July 1971, in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for the good of the service - in lieu of court-martial, with issuance of an Undesirable Discharge Certificate.  He was reduced to private (PV1)/E-1 on 28 June 1971.  He completed 2 years, 2 months, and 5 days of total active service with 515 days of time lost.

6.  There is no evidence 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 VA 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 was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

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 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.  In view of the foregoing, there is no basis for granting the applicant's requested relief.


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)                                         AR20100020493



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ABCMR Record of Proceedings (cont)                                         AR20100020493



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