IN THE CASE OF:	  

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100024029 


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 all he did was save his life and other military personnel.  He believes that after 40 years his discharge should be upgraded.

3.  The applicant does not provide any additional documents.

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 28 October 1966 for a period of 3 years.  He was awarded military occupational specialty 63G (fuel and electrical systems repairman).  He served in Vietnam from 2 June 1968 to 10 April 1969.
3.  On 20 June 1967, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 3 February to 3 March 1967; 1 April to 10 April 1967; and 19 April to 16 May 1967.

4.  On 21 December 1968, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully appropriating a 1/4 ton utility truck, property of the U.S. Government; and for absenting himself from his unit (located in Vietnam), both offenses occurring on 20 December 1968.

5.  On 1 March 1969, court-martial charges were preferred against the applicant for:

* being AWOL from 14 to 16 January 1969
* going from his appointed place of duty on 17 January 1969
* being AWOL from 17 to 18 January 1969
* being AWOL from 19 to 31 January 1969
* being AWOL from 3 to 12 February 1969
* being AWOL from 14 to 18 February 1969
* being AWOL from 20 to 25 February 1969
* wrongfully possessing 42 tablets of a barbiturate on 31 January 1969
* wrongfully possessing 11 tablets of a barbiturate on 25 February 1969

6.  On 28 February 1969, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, of the effects of his request for discharge, and the rights available.  Following consultation with legal counsel, he requested 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.

7.  In his request for discharge, he indicated he had not been subjected to coercion with respect to his request for discharge and that he had been advised of the implications that are attached to it.  He understood that if his request is accepted he may be discharge under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He further acknowledged he understood that if the discharge request were 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 laws.  He also understood that he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge.  He did not submit a statement in his own behalf.
8.  On 2 April 1969, the appropriate separation authority approved the applicant's request and directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

9.  Accordingly, on 11 April 1969 the applicant was separated with an undesirable discharge.  He completed 1 year, 10 months, and 8 days of total active service with 206 days of lost time.

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

11.  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 Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good of the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood that he could receive a discharge under other than honorable conditions, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An undesirable discharge certificate would normally be furnished to an individual who was discharged for the good of the service. 

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 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 accepted NJP and he was convicted by a special court-martial prior to the charges being preferred against him for the offenses which formed the basis for his voluntary request for discharge.  All together he was absent from his unit without authority on ten occasions, going from his appointed place of duty on one occasion, wrongfully appropriating a 1/4 ton utility truck on one occasion, and wrongfully possessing barbiturate tablets on two occasions.  Such repeated misconduct certainly warranted an undesirable discharge.

2.  While the applicant states he saved his life and other military personnel, there is no evidence he saved anyone's life.  There is also no correlation to his request for discharge upgrade.

3.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB within its 15-year statute of limitations or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, it is concluded his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.

4.  In view of the foregoing, there is no basis for granting the applicant’s request.

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)                                         AR20100024029



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ABCMR Record of Proceedings (cont)                                         AR20100024029



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