BOARD DATE:	  19 May 2011

		DOCKET NUMBER:  AR20100026193 


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 his discharge be upgraded.

2.  The applicant states:

* he was told at his court-martial his discharge would be upgraded to a general discharge after 6 months
* his lawyer said his discharge would be upgraded due to his service in Vietnam
* he would have never signed the papers if he had known his discharge would not be upgraded

3.  In a letter, dated 28 June 2010, he states:

* his discharge was upgraded from a bad conduct discharge to a general discharge 6 months after his discharge in 1974
* it was in his court papers
* he loved the Army
* after Vietnam he was going through some things
* he received the Army Commendation Medal and some other awards

4.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).



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.  He enlisted in the Regular Army on 9 January 1967 for a period of 3 years.  He completed basic combat training.

3.  While in advanced individual training, nonjudicial punishment (NJP) was imposed against the applicant on five separate occasions between 11 April 1967 and 15 November 1967.

4.  He served as a light vehicle driver in Vietnam from 17 January 1968 to 1 January 1969.

5.  On 26 February 1969, NJP was imposed against him for being absent without leave (AWOL), breaking restriction, and failure to repair.

6.  On 3 June 1969, he was convicted by a summary court-martial of being AWOL from 10 March 1969 to 21 May 1969.  He was sentenced to be reduced to E-1 and to forfeit $50.00 pay per month for 1 month.  On 9 June 1969, the convening authority approved the sentence.

7.  On 22 December 1969, he was convicted by a special court-martial of being AWOL from 7 July 1969 to 8 December 1969.  He was sentenced to be confined at hard labor for 4 months, to forfeit $100.00 pay per month for 3 months, and to be reduced to E-1.  On 14 January 1970, the convening authority approved the sentence.

8.  He was AWOL on 24 September 1970 and returned to military control on 21 February 1974.  On 25 February 1974, charges were preferred against the applicant for the AWOL period.

9.  On 28 February 1974 after consulting with counsel, the applicant submitted a request for 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.  He indicated in his request he understood he could be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he might encounter substantial prejudice in civilian life because of an undesirable discharge.  He elected not to submit a statement in his own behalf.

10.  On 25 March 1974, the separation authority approved the applicant's request for discharge and directed the issuance of an undesirable discharge.

11.  He was separated with an undesirable discharge on 10 April 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed a total of 2 years, 6 months, and 13 days of total active service with 1722 days of lost time.  His DD Form 214 shows he was awarded the Army Commendation Medal, National Defense Service Medal, Vietnam Service Medal, Republic of Vietnam Campaign Medal with Device (1960), and marksmanship qualification badges.

12.  On 29 June 1981, the Army Discharge Review Board denied his request for a general discharge.

13.  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, the 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 to an individual who was discharged for the good of the service.

14.  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.

15.  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.

16.  The U.S. Army does not now have and it has never had a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  He contends he was told his discharge would be upgraded to a general discharge within 6 months of his discharge.  However, a discharge upgrade is not automatic.

2.  He also contends his discharge was upgraded from a bad conduct discharge to a general discharge in 1974.  However, the evidence shows he received an undesirable discharge on 10 April 1974, not a bad conduct discharge.  There is no evidence and he provided no evidence which shows his discharge was upgraded to a general discharge in 1974.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  His record of service included six NJP's, one summary court-martial conviction, one special court-martial conviction, and 1722 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or 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 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)                                         AR20100026193



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ABCMR Record of Proceedings (cont)                                         AR20100026193



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