BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100021060 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he completed 2 years and 7 months of honorable service which should be sufficient to upgrade his discharge to a general discharge.  He adds that he does not believe his discharge was in error; however, to have it for the rest of his life is unjust.  He was a young Soldier, undergoing several problems at the time including being wounded in combat, coming home from Vietnam to turmoil throughout the country, and other pressures from peers not to return.  He had previously extended his tour in Vietnam and requested a transfer to another location but made a poor choice in that he reported to the wrong place.  Nevertheless, it has been 32 years since he was discharged and feels his discharge should be upgraded.

3.  The applicant provides:

* Letter Orders Number 12-100 (Special Leave)
* Summary Court-Martial Order Number 226
* General Orders Number 39 (Purple Heart)
* Special Orders Number 14 (Enlistment)
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* DA Form 20 (Enlisted Qualification Record)


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 was born on 13 July 1948 and enlisted in the Regular Army for a period of 3 years at 18 years and 6 months of age on 20 January 1967.  He held military occupational specialty 62D (Surfacing Equipment Specialist) and attained the rank/grade of specialist four/E-4. 

3.  His records also show he served in Vietnam from on or about 23 March 1968 to on or about 20 January 1969 when he failed to return from leave.  His DD Form 214 shows he was awarded the Parachutist Badge, Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-14), National Defense Service Medal, and the Vietnam Service Medal. 

4.  General Orders Number 39, issued by Headquarters, 34th Engineer Group, on 15 September 1968, awarded him the Purple Heart for wounds received in action on 9 September 1968.

5.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

* On 25 July 1968, for disobeying a lawful order issued by his commanding officer
* On 13 November 1968, for failing to perform his duties as a result of intoxication

6.  On 4 April 1969, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 22 January 1969 to 20 March 1969.  The court sentenced him to a forfeiture of pay, restriction, and a reduction in grade. 

7.  On 2 October 1978, court-martial charges were preferred against the applicant for three specifications of being AWOL during the periods:

* 21 October 1969 to 15 February 1970
* 18 April 1970 to 14 November 1971
* 10 December 1971 to 13 September 1978

8.  On 3 October 1978, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, he indicated he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

10.  On 5 and 10 October 1978, his immediate and intermediate commanders recommended approval of his discharge with the issuance of an under other than honorable conditions discharge.

11.  On 6 November 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 16 November 1978.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  He had completed 2 years, 7 months, and 10 days of creditable active service and he had 3,361 days of lost time.


12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate. 

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 applicant contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant was 18 years and 6 months of age at the time of his enlistment and over 20 years of age when he went AWOL.  However, there is no evidence he was any less mature than other Soldiers of the same age who successfully completed their service or that his AWOL was caused by his age. 

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20100021060





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ABCMR Record of Proceedings (cont)                                         AR20100021060



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