IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100020716 


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, in effect, upgrade of his under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states due process was not followed for his discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He states there was no admission of guilt on his part, or evidence showing he was guilty.  

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* four DA Forms 268 (Report for Suspension of Favorable Personnel Actions)
* two information papers published by the Fort Knox Field Office of the Army's Trial Defense Service 
* two pages from his DA Form 20 (Enlisted Qualification Record)
* seven letters of support
* a copy of his Concealed Weapons Permit

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 9 April 1968.  After completing basic combat and advanced individual training, he was awarded military occupational specialty (MOS) 12A (Pioneer) and assigned for duty with the 86th Engineer Battalion in Vietnam.  

3.  His DA Form 20 shows in item 31 (Foreign Service) he served in Vietnam from 24 September 1968 through 15 August 1969.  Item 38 (Record of Assignments) shows that after leaving Vietnam he was assigned for duty with the 3d Armored Cavalry at Fort Lewis, WA and remained at Fort Lewis until he was discharged.  

4.  His DD Form 214 shows he was awarded the National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device, Army Commendation Medal, and the Republic of Vietnam Cross of Gallantry with Palm Unit Citation.

5.  On 15 November 1969, he accepted non-judicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for signing an official return with intent to deceive.  His punishment was reduction to private first class/E-3, forfeiture of $22 pay per month for one month, and restriction and extra duty for 14 days.  

6.  DA Forms 268 in the applicant's record shows the following:

	a.  On 7 September 1970, the applicant was found in possession of what was suspected to be marijuana and harmful drugs and a Criminal Investigation Division (CID) investigation was pending.

	b.  On 8 September 1970, charges were forwarded with a recommendation for a General Court-Martial.  

	c.  On 9 September 1970, the applicant was sent to the post stockade for pre-trial confinement.
7.  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 4 December 1970.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

8.  The applicant's DD Form 214 further shows he was discharged UOTHC and that he completed 2 years, 7 months, and 26 days of total active service.

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

10.  In his self-authored statement, the applicant summarizes the events that led to his discharge and makes the following comments:

	a.  "After many months of researching the chapter 10 discharge process, I feel that DUE PROCESS in my case was not followed and evidence against me, or any admission of guilt on my behalf was not evident to enable this chapter 10 process to be effective.  I believe the U.S. Army took advantage of my situation and ignorance at the time."

	b.  "I was given a military lawyer and he said that there was not a case or any evidence against me . . . but I would have to wait my time until they were finished collecting any evidence that they could use against me.  After 3 or so months, I got a civilian lawyer.  He also said there was nothing against me and that they were trying to put evidence together and he suggested that I could be released under a chapter 10.  Resignation for the betterment of the Army, I chose that instead of waiting for the evidence they did not have.  I was 7 months from ETS and was tired of setting [sic] in the stockade not knowing anything."

	c.  "All my Army records say is, there were charges that I was suspected of and pending investigation . . . But no case of any kind brought against me in the three months I was in the stockade.  I was THREATENED with court martial and PRISON TIME, but no proceedings were started.  I do not remember saying I was guilty of any charges or signing any papers that said I was guilty.  And by UCMJ law I had to do that for a chapter 10 to go forward and be effective."

11.  He also states, in effect, that his post-service behavior has been exemplary.  He is a successful licensed contractor and an asset to his community as a residential landlord.  He possesses a concealed weapons permit, which requires passing a Federal Bureau of Investigation background check.  

12.  The letters of support provided by the applicant commend him as a citizen, businessman, and family man. 

13.  An information paper from the Trial Defense Service Fort Knox Field Office provided by the applicant describes current requirements for discharge under Army Regulation 635-200, chapter 10.  

14.  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 (July 1966 with changes) 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.

15.  Change 8 to Army Regulation 635-200 was in effect at the time of the applicant's discharge and presented a sample memorandum with subject:  Request for Discharge for the Good of the Service.  The sample memorandum read:

1.  Under the provisions of Chapter 10, AR 635-200, I (name of member) hereby request discharge for the good of the service (in lieu of trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge) (while under a suspended sentence to a bad conduct or dishonorable discharge) (as applicable).  I have not been subjected to coercion with respect to this request for discharge, and I have been advised of the implications that are attached to it.

2.  I understand that, if this request for discharge is accepted, I may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  I understand that, as a result of the issuance of such a discharge, I shall be deprived of many or all Army benefits, that I may be ineligible for many or all benefits administered by the Veterans Administration, and that I may be deprived of my rights 


and benefits as a veteran under both Federal and State law.  I also understand that I may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.

3.  I understand that, once this resignation is submitted, it may be withdrawn, whether or not accepted, only with the consent of the commander exercising general court-martial jurisdiction over me.

4.  Statements in my own behalf (are) (are not) submitted herewith (as enclosure __).

5.  Prior to completing this form, I have been afforded the opportunity to consult with appointed counsel, or military counsel of my own choice, if he is reasonably available, or civilian counsel at my own expense.  I (have consulted with counsel,           NAME          , who has fully advised me in this matter on           DATE          ) (decline to opportunity to consult with counsel).

6.  I have retained a copy of this request for discharge and any enclosures I submitted.

Nowhere does this memorandum state the member admits guilt to the offense(s) charged.  

16.  Change 42 to Army Regulation 635-200, effective 14 December 1973, changed policy to require an admission of guilt.  This policy remains in effect, as shown in the Trial Defense Service information paper provided by the applicant.  

17.  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.

18.  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.


19.  Army Regulation 15-185 (Army Board for Correction of Military Records) states 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 evidence of record does not support the applicant's request for upgrade of his UOTHC discharge.

2.  The applicant’s record shows he was charged with the commission of an offense or offenses punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations.  Although the applicant's separation processing paperwork is not available for review with this case, it is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

3.  The applicant states due process was not followed because he did not admit guilt to the charges against him.  The regulation in effect at the time did not require admission of guilt.  

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant failed to submit evidence that would satisfy this requirement.

5.  Although it is clear the applicant has conducted himself admirably in civilian life, the fact that he has done so does not change the circumstances of his discharge from military service.  

6.  In the absence of evidence showing the record is in error or unjust, the applicant is not entitled to upgrade of his 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.



      _______ _ XXX_______   ___
               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)                                         AR20100020716



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ABCMR Record of Proceedings (cont)                                         AR20100020716



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