BOARD DATE:	   9 June 2011

		DOCKET NUMBER:  AR20100029056 


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, in effect, an upgrade of his undesirable discharge.

2.  The applicant states he was not due to be discharged.  He requested leave to go home because his father was having surgery but it was denied.  He had words with his commander and he was put in "the Brigg" (confinement) before being discharged.  He deserves better than that since he served for 3 years and he did two tours in Vietnam instead of the one required.  When he came home he was spit on by three people at the airport for being a baby killer.  He deserves to be proud that he served his country.

3.  The applicant provides no additional evidence.

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 19 January 1971.  He was trained in and awarded military occupational specialty 94B (Cook).  He served in Vietnam from 25 January to 24 June 1972 while assigned to the 3rd Brigade, 1st Cavalry Division.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* on 16 September 1971, for failing to obey a lawful order and disorderly conduct
* on 7 March 1972, for being disrespectful to a superior noncommissioned officer and failing to obey a lawful order

4.  On 1 March 1973, he was apprehended by the military police for possessing marijuana, concealing a weapon, and possessing an altered military identification card.

5.  On 4 March 1973, court-martial charges were preferred against him for the following specifications:

* being absent from his place of duty on 1 March 1973
* wrongfully possessing marijuana on 1 March 1973
* unlawfully possessing, with intent to deceive, a false military identification card on 1 March 1973
* unlawfully carrying a concealed weapon on 1 March 1973
* being disrespectful to a superior commissioned officer on 1 March 1973
* breaking restriction on 4 March 1973
* wrongfully possessing marijuana on 4 March 1973

6.  On 5 March 1973, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or dishonorable discharge, 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.

7.  Following consult 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.  In a statement submitted in his own behalf, he stated he understood what a chapter 10 discharge was, it was what he wanted, he did not want to waste the command's or his own time, and he wanted the discharge. 


8.  He acknowledged he understood if the discharge request was approved, he may be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

9.  On 23 March 1973, his chain of command recommended approval of his discharge with the issuance of an Undesirable Discharge Certificate.

10.  On 23 April 1973, the separation authority (a major general) approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10.  The separation authority further directed the issuance of an Undesirable Discharge Certificate and reduction to the lowest enlisted grade.

11.  On 1 May 1973, he was discharged accordingly.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) he was issued shows he completed 1 year, 3 months, and 13 days of total active service.

12.  On 22 October 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge and determined he had been properly discharged.

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, 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 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.  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP on two occasions for failing to obey lawful orders and disorderly conduct, once before he ever went to Vietnam and once while he was in Vietnam.  He was apprehended by the military police for possessing marijuana, concealing a weapon, and possessing an altered military identification card.  Among other charges, he was subsequently charged with two specifications of possessing marijuana, concealing a weapon, and possessing a false military identification card which was the basis for his voluntary discharge.

3.  Based on his record of misconduct, his service (which it appears included only 5 months in Vietnam) clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable discharge 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 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)                                         AR20100029056



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100029056



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1