BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100027024 


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 that his undesirable discharge be upgraded.

2.  The applicant states he was on drugs at the time.  He served in the Army for 
5 years, completed two tours in the Republic of Vietnam (RVN), and has four Purple Heart awards.

3.  The applicant provides no additional documentation.

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.  On 28 August 1967, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11H (Infantry Direct Fire Crewman).
3.  On 29 March 1968, the applicant departed Fort Gordon, Georgia for duty in the RVN.  He was subsequently assigned to the 3rd Battalion, 21st Infantry Regiment, 196th Infantry Brigade.

	a.  Records indicate he was wounded in May and August 1968 and received awards of the Purple Heart.

	b.  On 24 October 1968, a special court-martial convicted him of violation of Article 90, Uniform Code of Military Justice (UCMJ) for willfully disobeying a lawful order.

	c.  On 21 December 1968, a special court-martial convicted him of violation of Article 90, UCMJ for willfully disobeying a lawful order.

	d.  On 18 April 1969, the applicant returned to the United States for duty at Fort Meade, Maryland.

4.  On 1 July 1969, the applicant was honorably discharged for the purpose of immediate reenlistment.  On 2 July 1969, he reenlisted and was subsequently assigned for duty in Europe.

5.  On 2 October 1969, the applicant was assigned for duty as a loader with the 3rd Squadron, 2nd Armored Cavalry Regiment, located in the Federal Republic of Germany (FRG).

6.  On 25 July 1970, the applicant departed the FRG for another assignment in the RVN.

	a.  On 18 September 1970, he was assigned for duty as a grenadier with the 1st Battalion, 327th Infantry Regiment, 101st Airborne Division.

	b.  On 20 January 1971, he was promoted to sergeant, pay grade E-5.

	c.  General Orders Number 2806, 101st Airborne Division, dated 5 April 1971, awarded him the Army Commendation Medal for meritorious achievement during the period 1 October 1970 through 28 February 1971.

	d.  On 14 April 1971, he was reassigned within the RVN to the 159th Aviation Battalion, for duty as a mortar man.

	e.  On 16 August 1971, he accepted nonjudicial punishment (NJP) for willfully disobeying a lawful order.
	f.  On 10 September 1971, court-martial charges were preferred against him for wrongful possession of heroin.

7.  On 4 October 1971, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

8.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive an under other than honorable conditions (UOTHC) discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.

9.  In his request for discharge, the applicant indicated that he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 12 October 1971, additional court-martial charges were preferred against him for disobeying a lawful order.

11.  On 18 October 1971, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 16 November 1971, the applicant was discharged accordingly.  He had completed a total of 4 years, 2 months and 19 days of creditable active military service.

12.  Under the UCMJ, the maximum punishment allowed for wrongful possession of heroin is a dishonorable discharge and confinement for 5 years.

13.  On 2 July 1973, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.



14.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 provides 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 UOTHC is normally considered appropriate.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 discharge should be upgraded because of his service in the RVN that resulted in his being wounded on multiple occasions and being awarded the Purple Heart for those wounds.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's record of good service is greatly diminished by the two special court-martial convictions and one NJP that he received.  His service in the RVN has been carefully considered; however, that service does not sufficiently mitigate his misconduct.

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)                                         AR20100027024





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ABCMR Record of Proceedings (cont)                                         AR20100027024



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