BOARD DATE:	  24 March 2011

		DOCKET NUMBER:  AR20100022753 


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 undesirable discharge.  He also requests a personal appearance before the Board.

2.  The applicant states he did not disobey an order and he did not shoot anyone.  He adds that he needs and earned his benefits.

3.  The applicant provides no additional documentary evidence in support of this 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's military records show he was inducted into the Army of the United States on 30 September 1965.  He completed initial entry training and he was awarded military occupational specialty 36K (Field Wireman).  He reenlisted on 16 November 1967.  The highest rank he held was sergeant/E-5.

3.  Records show he accepted nonjudicial punishment (NJP) on four occasions for:

	a.  being found asleep on guard duty in Vietnam;

	b.  failing to obey a lawful order and for absenting himself without proper authority;

	c.  uttering a check and wrongfully and dishonorably failing to maintain sufficient funds in the bank for payment of such check upon its presentment for payment; and

	d.  failing to obey a general regulation by exceeding the speed limit.

4.  On 21 April 1969, a summary court-martial convicted him of failing to obey a lawful command not to operate his privately owned vehicle while at a training area.

5.  On 17 August 1970, a special court-martial convicted him of committing an assault upon another Soldier by shooting him in the shoulder with a dangerous weapon (a .45 caliber pistol) and for assaulting the same Soldier by pointing an 
M-16 rifle at him while in Vietnam.

6.  On 1 March 1972, he was charged with being absent without leave during the period 24 November 1970 to 4 March 1971 and during the period 23 May 1971 to 24 February 1972.

7.  On 3 March 1972, having consulted with military counsel, he voluntarily requested a discharge 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 under circumstances which could lead to a bad conduct or dishonorable discharge.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.



8.  He acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Undesirable Discharge Certificate.  He acknowledged that he understood as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He chose not to submit a statement in his own behalf.

9.  His complete discharge packet is not contained in his records.  However, on 
27 March 1972, he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 5 years, 5 months, and 13 days of total active service with 381 days time lost.

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

11.  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.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

12.  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.

13.  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 discharge with characterization of service of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

14.  Army Regulation 15-185 governs operations of the ABCMR.  Paragraph 2-11 of this regulation states that applicants do not have a right to a hearing before the ABCMR.  The regulation provides that the Director of the ABCMR or the ABCMR may grant a formal hearing before which the applicant, counsel, and witnesses may appear whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence in his record and he has not submitted any substantive evidence showing he did not disobey an order or shoot someone.

2.  His records show he received NJP on four occasions, he was convicted twice by a court-martial, and he had 381 days of lost time.  He voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  The applicant's reason for separation and his characterization of service were appropriate considering all the facts of the case.  He was properly and equitably discharged.  There is no evidence of procedural errors that would have jeopardized his rights.

3.  Although the application indicates the applicant desires to appear before the Board, there are sufficient records available for a fair and impartial review in this case without such an appearance.

4.  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)                                         AR20100022753



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ABCMR Record of Proceedings (cont)                                         AR20100022753



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